FEDERAL   POWER: 
ITS  GROWTH  AND  NECESSITY 


HENRY    LITCHFIELD    WEST 


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FEDERAL  POWER: 

ITS   GROWTH   and  NECESSITY 


BY 

HENRY  LITCHFIELD  WEST 

FORMER  COMMISSIONER  OF  THE  DISTRICT  OF  COLUMBIA 


NEW  ^LSr  YORK 
GEORGE  H.  DORAN  COMPANY 


l^uJlaM^^ 


3* 

V3 


COPYRIGHT,  1918. 
BY  GEORGE  H.  DORAN  COMPANY 


PRINTED  IN  THE  UNITED  STATES  OF  AMERICA 


TO 

MARY  HOPE  WEST 


695575 


Preface 

An  epoch  in  our  national  history  occurred  on 
April  6,  19 1 7,  when  the  people  of  the  United 
States,  through  their  representatives  in  Congress, 
declared  the  existence  of  a  state  of  war  with 
Germany.  Since  that  eventful  date  we  have  wit- 
nessed a  most  remarkable  and  unprecedented  ex- 
ercise of  Federal  power.  We  have,  without  pro- 
test and  even  with  satisfaction,  accorded  to  the 
government  a  control  over  corporate  and  indi- 
vidual existence  which  infinitely  transcends  the 
wildest  dreams  of  those  who  advocate  centralized 
authority. 

This  being  the  case,  it  is  worth  while  to  re- 
view, briefly  and  concisely,  the  history  of  the 
growth  of  Federal  power.  There  is  a  prevalent 
idea  that  the  acceptance  of  Federal  control  is  a 
matter  of  recent  development.  Nothing  could  be 
further  from  the  truth.  The  belief  in  the  neces- 
sity of  nationalization  had  its  beginning  nearly 
three  centuries  ago  and  its  persistent  progress  can 
be  clearly  traced  through  all  the  succeeding  years. 


viii  PREFACE 

Its  course  is  as  well-defined  as  that  of  the  trick- 
ling mountain  stream  which  deepens  and  widens 
until  it  is  a  resistless  force  sweeping  onward  to 
the  sea.  In  other  words,  the  Federal  power  now 
witnessed  in  unparalleled  extent  is  the  evolution 
of  a  principle  to  which  we  have  grown  accustomed 
and  which  we  now  recognize  as  essential  to  our 
national  welfare.  If  we  seem  to  be  advancing 
with  rapid  and  overwhelming  strides,  it  is  because 
the  momentum  has  been  gathering  for  many  years. 
Long  before  the  war  with  Germany  was  declared, 
the  doctrine  of  States'  rights  had  vanished  and 
the  doctrine  of  paramount  necessity  had  taken  its 
place. 

Because  of  the  vital  truth  underlying  this  doc- 
trine, the  growth  of  Federal  power  will  be  un- 
checked. Its  continued  manifestation  upon  a  con- 
stantly enlarging  scale  is  as  inevitable  as  fate.  It 
is  easier,  however,  to  review  and  analyze  the  past 
than  to  predict  the  future.  We  know  that  the 
character  of  our  government,  as  designed  by  its 
founders,  is  already  rapidly  changing  and  that  we 
are  less  prone  than  heretofore  to  regard  our  Con- 
stitution as  a  sacred  and  inviolable  instrument. 
There  is  a  possibility,  with  the  integrity  of  the 
State  as  an  essential  unit  disappearing,  that  we 


PREFACE  ix 

may  be  brought  face  to  face  with  a  one-man, 
bureaucratic  autocracy.  There  is  still  further 
danger  of  drifting  into  Socialism,  which  cannot 
develop  in  a  republic  composed  of  independent 
overeignties,  but  which  will  thrive  exceedingly 
..nder  the  asgis  of  a  strong  centralized  govern- 
ment. The  power  to  determine  the  destiny  of  the 
nation  rests  with  the  people.  It  is  for  them  to 
solve  the  problem  of  reconciling  a  democratic  sys- 
tem of  government  with  the  exercise  of  Federal 
power.  The  fact  that  they  have  in  the  past  proven 
their  capacity  for  self-government  is  the  basis  for 
the  hope  that  they  will  wisely  and  safely  cope  with 
the  grave  situation  which  already  confronts  them. 

H.  L.  W. 


Contents 

CHAPTER  PAGE 

I.     The  Beginnings  of  Federalism 15 

II.     The  First  Triumph  of  Federalism. ...  30 

III.  The    Federalistic    Influence   of  John 

Marshall 44 

IV.  The  Civil  War  and  its  Consequences .  .  57 

V.     The  Doctrine  of  Paramount  Necessity  68 

VI.     Federal  Control  Over  Railroads  and 

Trusts 82 

VII.     The  Federal  Power  and  the  People 97 

VIII.     Broadening  the  Federal  Field 114 

IX.     The  Supreme  Court  as  the  Bulwark  of 

Federalism 134 

X.     The  Power  of  the  President 150 

XI.     Federal  Power  as  a  Political  Issue —  166 

XII.     Federal  Power  in  War 183 

XIII.     Federalism  and  the  Future 197 


FEDERAL  POWER:  ITS  GROWTH 
AND   NECESSITY 

Chapter  I 


THE  BEGINNINGS  OF  FEDERALISM 

MANY  were  the  causes  which  led  our  fore- 
fathers to  sail  westward  toward  the 
American  shores.  Some  came  with  the  love  of 
adventure,  others  in  the  hope  of  securing  wealth. 
The  largest  proportion  was  dominated,  unques- 
tionably, by  the  desire  to  escape  the  petty  annoy- 
ances of  trammeled!  existence  under  tyrannical 
rule.  They  sought  freedom  and  libexty  of  ac- 
tion. The  conditions  under  which  they  lived, 
while  not  altogether  unbearable,  restricted  pri- 
vate endeavor.  The  yoke  of  surveillance  galled 
their  necks,  and  for  the  privilege  of  governing 
themselves  they  willingly  endured  privation  in  a 
wilderness.  To-day  the  American  people  accept 
without  protest  under  a  centralized  government 

15 


16      FEDERAL  POWER:    ITS  GROWTH 

a  regulation  of  their  private  conduct  which  makes 
the  conditions  which  induced  the  first  immigra- 
tion to  this  country  seem  trivial  by  comparison. 
Small  and  isolated  communities  may  be  gov- 
erned with  the  least  possible  effort  because  they 
present  a  minimum  of  problems.  Thus  during 
the  second  half  of  the  seventeenth  century,  when 
Massachusetts  Bay  was  far  removed  in  point  of 
time  from  Jamestown,  each  American  settlement 
governed  itself,  or  was  governed,  with  little  diffi- 
culty. Maryland,  Virginia,  North  Carolina  and 
even  Pennsylvania  accepted  a  governor  appointed 
by  the  English  king,  while  in  rugged  New  Eng- 
land a  democratic  form  of  government  had  been 
instituted.  Peacefully  and  separately  each  colony 
might  have  pursued  its  way  had  not  the  increase 
of  population  and  the  dangers  from  without  com- 
pelled union.  In  this  junction  of  interests,  made 
necessary  by  the  very  force  of  circumstances,  we 
find  the  beginnings  of  Federalism.  The  people 
realized  fully  250  years  ago  that  there  was  a 
strength  in  the  mass  which  the  unit  did  not  pos- 
sess. To-day  they  invest  the  Federal  government 
with  extraordinary  powers  because  they  know  that 
it  is  a  far  more  effective  agency  in  the  accomplish- 
ment of  results  than  any  individual  State  can  pos- 


AND  NECESSITY  17 

sibly  be.  This  realization  has  not  been  suddenly 
acquired.  It  comes  as  the  culmination  of  nearly 
three  centuries  of  experience.  Perhaps  justjiow  it 
is  expressed  more  emphatically  than  everJ?efore 
in  our  history  but  the  seed  was  planted  long  ago. 
And  because  ideas  which  persist  through  long  pe- 
riods take  firm  possession  of  the  human  mind  and 
are  then  difficult  to  eradicate,  the  Federalistic  sen- 
timent so  prevalent  to-day  warrants  the  most  seri- 
ous consideration. 

/Three  problems  confronted  the  early  colonists. 
The  first  and  most  important  was  the  necessity 
of  mutual  protection  against  their  common  ene- 
mies, the  Indians,  Dutch  and  French.  KThe  sec- 
ond was  the  relation  which  the  citizens  of  one 
colony  should  bear  to  the  other.  v  The  third  was 
the  disposition  to  be  made  of  fugitives  from  jus- 
tice who  fled  beyond  the  border  line  of  the  terri- 
tory in  which  their  offense  was  committed. »/  It 
was  these  factors  which  led  to  the  confederation 
of  the  New  England  colonists  in  1643.  There 
was  no  hint,  however,  of  any  real  union  in  this 
agreement  of  mutual  help.  On  the  contrary,  the 
terms  of  the  articles  of  confederation  expressly 
reserved  to  each  colony  its  own  local  rights  and 
jurisdiction.     They  did  agree,  it  is  true,  not  to 


18      FEDERAL  POWER:    ITS  GROWTH 

make  war  without  permission  of  their  co-partners 
unless  suddenly  invaded  and  also  that  no  two  col- 
onies should  join  in  one  jurisdiction  without  the 
consent  of  the  others,  but  beyond  this  each  colony 
was  a  law  unto  itself.  The  very  fact  that  fhey 
came  together,  however,  with  a  definite  idea 
underlying  their  joint  action,  is  important.  It  is 
the  fact  itself,  rather  than  the  manner  or  the 
method,  which  is  significant. 

This  union  in  1643  between  Massachusetts, 
New  Plymouth,  Connecticut  and  New  Haven  was 
described  as  a  league  of  friendship,  the  identical 
phrase  used  by  the  thirteen  colonies  in  178 1 
when  they  adopted  the  Articles  of  Confederation 
which  were  the  precursor  of  the  Constitution. 
The  details  of  the  union  were  very  simple.  Each 
colony  was  to  name  two  Commissioners,  and  if 
six  of  the  eight  agreed  upon  any  question,  their 
decision  was  to  stand;  otherwise,  it  was  to  be 
referred  back  to  the  colonial  assemblies,  in  which 
case  the  agreement  of  all  four  was  to  be  required. 
Provision  was  made  in  the  agreement  for  the  re- 
turn of  runaway  slaves  and  fugitives  from  justice, 
but  the  vital  principle  incorporated  was  the  recog- 
nition of  intercitizenship,  the  inhabitants  of  each 
colony  being  accorded  equal  rights  in  the  other  col- 


AND  NECESSITY  19 

onies.  It  seems  very  absurd  nowadays  to  read  of 
a  solemn  compact  which  assured  an  equality  of 
citizenship,  but  at  that  time  it  was  an  absolute  ne- 
cessity. In  the  early  history  of  the  Pennsylvania 
colony  the  people  were  highly  indignant  because  a 
Delaware  sheriff  crossed  their  border  in  pursuit  of 
a  thief  and  the  feeling  between  Massachusetts  and 
Rhode  Island  was  so  bitter  that  it  was  dangerous 
for  the  citizen  of  one  colony  to  be  found  within 
the  confines  of  the  other. 

Although  this  particular  agreement  became  ob- 
solete within  forty-five  years  and  accomplished 
little  or  nothing,  the  germ  _oi- Federalism  had 
been  planted.  As  the  years  advanced,  the  people 
of  the  colonies  became  more  and  more  impressed 
with  the  desirability  as  well  as  the  necessity  of 
cooperation  and  consolidation.  In  1690  the  New 
England  colonies,  together  with  New  York,  Vir- 
ginia, and  Maryland,  made  an  effort  to  combine 
and,  although  the  attempt  was  not  successful,  it 
gave  evidence  of  the  existence  of  a  sentiment  for 
union.  The  capture  of  the  French  fortress  Louis- 
burg,  on  the  coast  of  Cape  Breton,  by  a  New 
England  force  under  General  Pepperell  in  I744> 
was  signalized  by  the  "hoisting  of  a  Union  flag." 
William   Penn,    shrewd   and   farsighted,   should, 


20      FEDERAL  POWER:    ITS  GROWTH 

perhaps,  be  designated  as  the  father  of  Federal- 
ism, because  his  plan  of  combination  as  drawn  up 
in  1696  was  a  very  distinct  advance  in  the  way  of 
definite  suggestion.  It  -was  unique  in  that,  for 
the  first  time,  all  the  colonies  were  included,  and 
because  it  provided  that  the  assembly  of  the  dele- 
gates should  be  called  "the  Congress,"  to  be  pre- 
sided over  by  a  Commissioner  appointed  by  the 
King.  More  than  this,  however,  was  the  pro- 
vision for  the  regulation  of  commerce  between 
the  colonies.  This  was  the  crux  then,  as  it  is  now, 
of  the  Federalistic  movement.  It  had  been  easy 
to  give  citizens  equal  consideration  everywhere 
and  to  combine  in  self-protection  against  a  com- 
mon enemy,  but  experience  was  to  prove  that 
agreements  which  failed  to  take  <into  considera- 
tion the  very  practical  and  material  regulation  of 
commerce  by  a  central  organization  would  be 
neither  effective  nor  lasting.  Penn's  plan,  although 
widely  discussed,  was  not  arcfopted,  but  its  vital 
principle  of  union,  instead  of  dying  out,  became 
more  and  more  alive.  Robert  Livingstone  in 
1 70 1  suggested  combining  the  colonies  into  three 
distinct  governments,  while  twenty  years  later 
the  Earl  of  Stair  proposed  a  union  of  all  the 
American  colonies  and  the  West  Indies,  with  local 


AND  NECESSITY  21 

self-government  guaranteed  to  each.  Many  other 
thinkers  came  forward  with  similar  schemes  of 
consolidation,  all  of  them  expressing  more  and 
more  the  spirit  of  ultimate  concentration  of  a  Fed- 
eralistic  power.  Finally,  in  1754,  in  the  Albany 
Congress,  Benjamin  Franklin  evolved  a  plan 
which  was  a  tremendous  stride  forward.  It  went 
too  far,  as  a  matter  of  fact,  and  was  rejected;  but 
its  details  are  worthy  of  consideration  as  showing, 
even  at  that  remote  day,  a  realization  of  the  even- 
tual necessity  of  a  centralized  government. 

Franklin  proposed  a  grand  council  of  the  col- 
onies with  members  proportioned  roughly  to  popu- 
lation, presided  over  by  a  President-General,  who 
was  to  be  invested  with  power  to  execute  the  acts 
of  the  council.  This  idea  of  an  authoritative  head 
over  all  the  colonies  was  not  as  startling,  however, 
as  the  provision  that  the  grand  council  should 
"lay  and  levy  general  duties,  imposts  and  taxes" 
proportionately  upon  each  colony.  The  thought 
embodied  in  this  proposition  was  revolutionary. 
It  confronted  the  colonies  with  a  power  superior 
to  themselves.  They  were  to  govern  themselves 
independently,  of  course,  but  they  were  also  to 
be  subject  to  paying  assessments — nobody  knew 
how  much  or  how  little — which  might  be  laid  upon 


22      FEDERAL  POWER:    ITS  GROWTH 

them.  The  assembly  to  which  this  plan  was  sub- 
mitted, although  it  unanimously  agreed  that  union 
was  absolutely  necessary  for  preservation,  would 
not  agree  to  being  taxed  by  a  central  body,  even 
though  in  that  body  the  colonies  were  fully  rep- 
resented. But  the  inevitable  was  merely  post- 
poned. Less  than  half  a  century  later  they  were 
to  agree  to  a  Constitution  into  which,  through  the 
agency  of  taxation  and  the  regulation,  of  com- 
merce, the  supremacy  of  Federal  power  was  to  be 
breathed  and  the  nation  made  a  living  soul. 

The  first  necessity  for  cohesion  had  been  pro-, 
tection  against  the  Indians.    In  the  last  quarter  of/ 
the  eighteenth  century  another  danger  threatened. 
The  English  government,  with  fatuous  persist- 
ency, had  not  only  laid  undue  burdens  upon  the , 
colonies  but  had  done  so  in  a  manner  calculated  ■ 
to   arouse  bitter  resentment.     The   Stamp   Act, 
which  made  the  colonists  contribute  to  the  reve- 
nues of  the  British  crown  although  without  repre- 
sentation in  the  British  Parliament,  was  especially 
odious.     The  closing  of  the  port  of  Boston  and 
other  restrictions  upon  navigation  bore  heavily 
upon  the  population,  while  the  fact  that  citizens 
of  the  colonies  had  been  denied  trial  by  jury  and 
had  even  been  transported  to  England  for  trial 


AND  NECESSITY  23 

was  repugnant  to  every  sense  of  justice  and  fair 
play.  It  became  essential,  if  these  impositions 
were  to  be  removed  and  the  colonies  left  in  the 
enjoyment  of  their  peace  and  liberty,  that  there 
should  be  concerted  action.  In  other  words,  the 
day  of  individual  existence  was  passed  and  the 
colonies  were  to  be  transformed,  as  some  one 
expressed  it,  into  a  bundle  of  sticks  which  could 
neither  be  bent  nor  broken.  The  bundle  was, 
however,  rather  insecurely  bound.  The  twine — 
for  the  material  did  not  reach  the  stoutness  nor 
dignity  of  rope — was  the  Continental  Congress^ 
a  body  of  delegates  with  no  authority  behind  them 
except  public  sentiment  and  who  conducted  a  war  / 
against  Great  Britain  in  a  hap-hazard  arrange- 
ment with  the  colonies.  It  was  while  this  war 
was  in  progress  that  the  Articles  of  Confedera- 
tion were  adopted.  They  declared  that  the  States 
severally  entered  into  "a  firm  league  of  friendship 
with  each  other  for  their  common  defense,  the 
security  of  their  liberties,  and  their  mutual  and 
general  welfare,  binding  themselves  to  assist  each 
other  against  all  force  offered  to,  or  attacks  made 
upon,  them,  or  any  of  them,  on  account  of  re- 
ligion, sovereignty,  trade,  or  any  other  pretense 
whatever.1'    The  States  were  not  allowed  to  send 


24      FEDERAL  POWER:    ITS  GROWTH 

or  receive  foreign  embassies  nor  to  make  treaties 
with  each  other,  but  they  could  maintain  war  ves- 
sels "in  such  number  as  might  be  deemed  neces- 
sary by  the  United  States  in  Congress  assembled, 
for  defense  of  such  State  or  its  trade,"  while  the 
land  force  could  be  large  enough  to  garrison  all 
the  forts  within  the  State.  These  Articles  of  Con- 
federation are  not  so  important  for  what  they  con- 
tain, however,  as  for  what  they  omit.  The  former 
colonies,  still  tenacious  of  their  individual  rights, 
even  though  willing  to  be  associated  together  un- 
der the  title  of  "The  United  States  of  America," 
would  not  yield  to  Congress  the  right  to  make  them/ 
pay  taxes.  Such  powers  as  the  Continental  Con- 
gress possessed  without  written  authority  were  not 
much  increased  by  the  document  creating  "the 
league  of  friendship."  The  Congress  could 
modestly  suggest  what  sum  might  be  needed  to 
maintain  the  central  government  but  it  had  neither 
power  nor  machinery  to  enforce  payment.  The 
respect,  not  to  say  reverence,  shown  to  the  State 
as  an  entity  was  very  marked.  Congress  itself 
declared  that  it  could  not  negotiate  a  treaty  of 
commerce  which  interfered  with  the  legislative 
power  of  the  State  "in  imposing  such  imposts  and 
duties  on  foreigners  as  their  own  people  are  sub- 


AND  NECESSITY  25 

jected  to."  The  prerogatives  of  the  State  were 
still  further  jealously  guarded  by  a  provision  which 
gave  one  vote  to  each  State  and  compelled  the 
assent  of  nine  out  of  the  thirteen  States  to  prac- 
tically every  measure  which  might  be  imposed. 

Weak  and  disorderly,  inefficient  and  unsatisfac- 
tory, was  the  government  under  the  Articles  of 
Confederation,  and  simply  because  the  people  in 
the  new  States  could  not  appreciate  fully  the  neces- 
sity of  surrendering  sovereignty  and  putting  force 
behind  laws.  It  seems  ridiculous  to-day  that  New 
York  should  have  possessed  the  authority  to  pass 
laws — and  actually  did  enact  laws — to  keep  out 
firewood  from  Connecticut  and  garden  truck  from 
New  Jersey.  No  wonder  that  the  bundle  of  sticks 
began  to  fall  apart.  Separation  seemed  imminent. 
Congress,  declining  daily  in  public  esteem  because 
of  its  confessed  impotence,  was  too  weak  to  ex- 
ercise any  authority,  and  was  equally  helpless  in 
the  matter  of  raising  revenues  to  meet  current  ex- 
penses. Then  came  the  trouble  with  Spain  over 
the  navigation  of  the  lower  Mississippi  River, 
which  interfered  with  the  effort  to  secure  a  com- 
mercial treaty  with  that  country,  and  for  the  set- 
tlement of  which  no  authority  seemed  to  exist 
anywhere.     Meanwhile,  the  rag  money  issued  by 


26      FEDERAL  POWER:    ITS  GROWTH 

the  States  was  practically  worthless  and  the  lack 
of  a  secure  currency  occasioned  great  distress. 
Different  States  enacted  different  tariff  and  ton- 
nage acts;  State  jealousies  were  easily  aroused  and 
frequently  expressed.  Massachusetts,  for  in- 
stance, although  disturbed  by  serious  internal 
troubles,  declared  that  it  was  beneath  its  dignity 
to  allow  Congressional  troops  to  set  foot  upon  its 
soil.  There  was  no  such  thing  as  national  credit, 
while  national  authority  was  absolutely  non- 
existent. 

Under  these  circumstances,  it  was  more  and 
more  borne  in  upon  the  American  people  that 
their  system  of  self-government  was  vitally  wrong. 
The  very  conditions  under  which  they  lived  con- 
vinced them  that  they  had  not  solved  the  problem. 
Fortunately  there  were  men  like  George  Wash- 
ington to  courageously  point  out  the  defect  and 
suggest  the  remedy.  These  men  appealed  to  what 
might  be  called  the  Federal  spirit  in  the  people — 
the  spirit  which,  manifested  in  various  forms  dur- 
ing the  preceding  century  and  a  half,  Was  now  to 
be  stimulated  into  accomplishment.  Washington 
insisted  that  there  should  be  a  central  govern- 
ment which,  in  addition  to  possessing  the  flower 
to  make  war  and  peace  and  conclude   treaties, 


AND  NECESSITY  27 

should  also  have  authority  to  levy  taxes  and  regu- 
late commerce,  and  should  completely  control  the 
executive  and  judicial  departments.  He  felt,  as 
he  expressed  it  later,  that  it  was  impracticable 
to  secure  all  the  rights  of  independent  sovereignty 
to  each  State  and  yet  provide  for  the  interest  and 
safety  of  all.  Pelatiah  Webster,  stating  the  idea 
more  definitely,  proposed  "a  new  system  of  gov- 
ernment which  should  act  not  on  the  States  but 
directly  upon  individuals  and  vest  in  Congress  full 
power  to  carry  its  laws  into  effect."  The  fullness 
of  time  had  come;  but  even  so,  it  was  necessary 
for  the  men  who  foresaw  that  only  in  united  and 
not  divided  power  could  the  union  survive,  to 
move  with  caution.  The  famous  convention  of 
1787,  which  framed  the  Constitution,  was  the  out- 
growth of  a  conference  called  to  consider  the  re- 
lations between  Maryland  and  Virginia  growing 
out  of  the  extension  of  navigation  in  the  upper 
Potomac.  Merely  as  a  secondary  consideration 
for  the  gathering  at  Annapolis  was  it  suggested 
that  the  delegates  should  take  up  the  task  of 
amending  the  Articles  of  Confederation.  JThe. 
path  to  Federalism,  while  proving  less  arduous, 
was  not  unopposed.  There  were  still  some  people 
who  argued  that  the  principle  involved  in  the  pro- 


28      FEDERAL  POWER:    ITS  GROWTH 

test  against  the  Stamp  Act,  viz.,  that  no  authority 
to  levy  taxes  existed  outside  of  the  State  itself, 
was  now  proposed  to  be  violated  by  the  creation 
of  a  central  government  which  would  exercise  this 
power.  They  asked  why  they  had  fought  the 
war  of  the  Revolution  if  the  independence  which 
they  had  gained  was  thus  to  be  ruthlessly  sacri- 
ficed. This  discontent  found  expression  in  the  in- 
surrection in  Western  Massachusetts  in  1786-87, 
known  as  Shays's  rebellion.  Happily,  however, 
these  voices  were  in  the  minority.  The  great  mass 
of  people,  as  John  Fiske  so  plainly  shows^__were 
more  afraid  of  anarchy  than  of  centralization; 
and  anarchy  was  staring  them  in  the  face. 

It  seems  strange  nowadays,  when  we  are  so 
thoroughly  accustomed  to  appeals  for  the  larger 
exercise  of  Federal  power,  to  read  how  the  peo- 
ple of  little  over  a  century  ago  stood  with  anxious 
faces  under  the  shadow  of  an  impending  Federal 
government.  They  accepted  it  with  trepidation 
because  it  seemed  to  be  their  only  salvation,  and 
because  there  had  been  visible  demonstration  of 
its  efficiency  during  the  preceding  one  hundred 
and  fifty  years.  They  had  learned  by  experience 
the  value  of  united  action  against  enemies  from 
without,  the  Indians  and  the  English.    They  had 


AND  NECESSITY  29 

an  idea  that  what  had  proven  efficacious  yesterday 
might  be  equally  so  to-day.  What  they  did  not 
foresee  was  that  a  century  later  the  people  would 
unite  to  make  the  strong  arm  of  the  government 
still  stronger  so  as  to  fight  enemies  from  within 
— corporate  domination  and  the  monopoly  of 
trusts — as  well  as  to  insure  the  largest  degree  of 
benefit  to  each  individual  citizen  of  the  United 
States. 


FEDERAL  POWER:    ITS  GROWTH 


Chapter  II 

THE  FIRST  TRIUMPH  OF  FEDERALISM 

THE  fate  of  the  union  now  hung  in  the  bal- 
ance. If  the  States  would  agree  to  abandon 
their  idea  of  independent  sovereignty  in  order  that 
centralized  government  might  be  established  there 
was  hope  for  future  solidity  and  progress. 

In  selecting  George  Washington  as  the  presi- 
dent of  the  Constitutional  Convention  the  friends 
of  Federalism  gained  a  decided  victory.  It  is 
true  that  as*  the  presiding  officer  Washington 
could  not  participate  in  the  debates,  but  he  was  a 
Federalist  at  heart  and  his  influence  was  strong 
with  delegates  of  wavering  opinions.  The  theory 
of  the  sovereign  character  of  the  States  was  still 
uppermost  in  many  minds  and  it  was  no  easy 
matter  for  the  Federalists  to  convince  these  doubt- 
ers that  the  Federal  government  must  possess  the 
power  to  levy  taxes  and  regulate  commerce. 
These  were  the  crucial  points  at  issue.  Questions 
as  to  how  the  representatives  of  the  people  were 


AND  NECESSITY  31 

to  be  chosen;  how  the  President  should  be  elected 
and  the  length  of  his  term ;  and  whether  the  Fed- 
eral judiciary  should  be  elected  or  appointed, 
were  mere  details.  The  future  of  the  govern- 
ment was  settled  when  a  dozen  words  had  been 
written  into  the  Constitution — "general  welfare," 
"lay  and  collect  taxes,"  and  "regulate  commerce 
among  the  several  States."  When,  in  addition, 
it  was  declared  that  all  laws  of  the  United  States 
made  in  pursuance  of  the  Constitution  "shall  be 
the  supreme  law  of  the  land,  and  the  judges  in 
every  State  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  States  to  the  con- 
trary notwithstanding,"  the  growth  of  Federalism 
was  as  inevitable  as  fate.  The  seed  was  planted 
and  the  day  of  full  fruition  was  merely  a  question 
of  time.  The  tenth  amendment  to  the  Constitu- 
tion, which  prescribes  that  "the  powers  not  dele- 
gated to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people,"  was 
merely  a  sop  to  Cerberus.  It  eased  the  minds  of 
the  opponents  of  a  centralized  government  and  to 
that  extent  accomplished  the  purpose  for  which 
it  was  intended. 

The  victory  for  Federalism  in  the  Constitution 


32      FEDERAL  POWER:    ITS  GROWTH 

came  as  the  outcome  of  a  skillfully  managed  con- 
test. The  States,  unaware  of  the  tremendous  is- 
sues to  come  before  the  convention,  sent  their 
delegates  with  perfunctory  credentials.  New 
Hampshire  stood  practically  alone  in  its  declara- 
tion that  it  would  not  circumscribe  its  views  "to 
the  narrow  and  selfish  objects  of  the  partial  con- 
venience," and  in  its  avowal  of  readiness  to  make 
every  concession  for  the  safety  and  happiness  of 
the  whole.  When  Edmund  Randolph,  delegate 
from  Virginia,  introduced  a  series  of  resolutions 
as  a  basis  for  action,  he  carefully  avoided  all 
reference  to  the  levying  of  taxes  or  the  regulation 
of  commerce,  although  he  was  willing  that  Con- 
gress should  "legislate  in  all  cases  to  which  the 
separate  States  are  incompetent  or  in  which  the 
harmony  of  the  United  States  may  be  interrupted 
by  the  exercise  of  individual  legislation."  Charles 
Pinckney,  of  South  Carolina,  went  further  and 
boldly  proposed  that  Congress  "shall  have  the 
power  to  lay  and  collect  taxes,  duties,  imposts  and 
excises."  While  this  vital  principle  was  being 
gradually  impressed  upon  the  minds  of  the  dele- 
gates the  debate  proceeded.  The  tender  sensibili- 
ties of  those  who  still  manifested  some  regard  for 
the  rights  of  the  States  were  rudely  shocked  by 


AND  NECESSITY  33 

the  unqualified  expressions  of  Alexander  Hamil- 
ton. "I  am  convinced,"  he  said,  uthat  no  amend- 
ment of  the  Confederation  can  answer  the  pur- 
pose of  a  good  government  so  long  as  the  State 
sovereignties  in  any  way  exist."  He  declared  fur- 
ther that  State  distinctions  and  State  operations 
must  be  annihilated,  "and  unless  we  do  this,"  he 
added,  "no  good  purpose  can  be  secured."  One 
of  his  reasons  for  electing  Representatives  by  the 
people  was  a  belief  that  there  might  come  a  time 
when  State  legislatures  would  cease  and  he 
thought  that  "such  an  event  ought  not  to  embar- 
rass the  national  government."  It  must  not  be 
understood,  however,  that  these  radical  views 
were  uttered  without  arousing  protest.  On  the 
contrary,  Robert  Yates  and  John  Lansing,  jr., 
delegates  from  New  York,  withdrew  from  the 
convention  when  they  round  the  Federal  spirit  so 
strongly  expressed  and  saw  it  being  embodied  in 
the  Constitution.  They  hastened  home  to  pour 
out  their  grievances  into  the  sympathetic  ear  of 
Governor  Clinton  and  then  gave  publicity  to  their 
fears.  They  asserted  that  the  principles  incor- 
porated into  the  Constitution  were  destructive  to 
civil  liberty,  argued  that  the  United  States  could 
never  govern  the  wide  expanse  of  territory  in- 


34      FEDERAL  POWER:    ITS  GROWTH 

eluded  within  its  borders,  spoke  timorously  of 
the  great  cost  which  the  national  legislature  would 
entail  upton  the  people,  and  strenuously  objected 
to  New  York  being  deprived  of  its  most  essential 
rights  of  sovereignty  and  placed  in  a  dependent 
position. 

Unnecessarily  alarmed  were  Yates  and  Lansing, 
as  the  future  demonstrated,  and  yet  they  were 
not  alone  in  their  position.  The  Constitution  was 
finally  adopted  by  the  convention  because  the 
country  was  then  face  to  face,  as  it  is  to-day,  with 
problems  not  to  be  solved  except  through  the  ex- 
ercise of  strong  Federal  power;  but  out  of  the 
sixty-five  delegates  designated,  only  thirty-nine 
remained  in  their  seats  to  affix  their  signatures  to 
the  immortal  document.  In  Virginia,  Patrick 
Henry  denounced  the  Constitution  as  a  fla- 
grant outrage  upon  the  Slates  and  he  especially 
criticized  the  opening  phrase,  "We,  the  people 
of  the  United  States."  He  saw  in  these  words 
the  beginning  of  the  end.  Many  Virginians 
shared  his  views — Richard  Henry  Lee  and  George 
Mason  among  the  number.  The  final  ratification 
by  Virginia  was  accomplished  by  the  narrow  mar- 
gin of  ten  votes  out  of  a  total  of  165,  and  only 
because  the  members  of  the  State  convention  had 


AND  NECESSITY  35 

the  wisdom  to  see  that  no  matter  how  the  States 
had  been  treated,  the  powers  granted  by  the  Con- 
stitution still  remained  with  the  people  and  had 
not  in  any  way  been  abridged.  As  a  m^'^er  of 
fact,  time  has  demonstrated  the  accuracy  of  this 
point  of  view.  The  wide  extent  of  power  now 
enjoyed  by  the  Federal  government  has  been 
given  to  it  by  the  people.  The  government  has 
become,  as  some  one  has  aptly  expressed  it,  a 
creature  of  the  masses  which  compose  the  sov- 
ereignties rather  than  of  the  sovereignties  them- 
selves. 

But  it  was  impossible  in  those  days,  with  a  few 
weak  States  just  emerging  from  a  long  and  costly 
war,  to  secure  the  acquiescence  in  Federal  su- 
premacy which  is  now  accepted  as  a  matter  of 
course.  "Sic  transit  gloria  Americana, "  wrote 
Elbridge  Gerry,  while  Samuel  Chase,  James  Mon- 
roe, and  scores  of  other  leading  men  joined 
in  the  general  chorus  of  criticism.  At  Albany 
a  copy  of  the  Constitution  was  publicly  burned 
and  in  Rhode  Island  nearly  1,000  armed  men, 
headed  by  a  judge  of  the  State  Supreme  Court, 
compelled  the  speakers  at  a  public  gathering  to 
desist  from  saying  anything  favorable  to  the 
Constitution.      To    meet    this    hostile    sentiment 


36      FEDERAL  POWER:    ITS  GROWTH 

Hamilton,  Madison  and  Jay — but  mainly  Hamil- 
loii — wrote  the  Federalist  papers.  These  cogent 
and  logical  expositions  of  the  necessity  for  a  Fed- 
eral government  are  so  familiar  that  only  two 
observations  are  requisite  to  the  purposes  of  this 
volume.  The  first  is  that  they  have  endured. 
There  were  innumerable  pamphlets  in  opposition 
to  the  scheme  outlined  in  the  Constitution  but  they 
have  perished,  save  for  a  few  rare  copies  now  pre- 
served in  various  libraries.  The  Federalist  pa- 
pers, on  the  other  hand,  have  been  published  in 
many  editions  and  still  remain  standard  literature, 
a  convincing  illustration  of  the  trend  of  the  public 
mind.  In  the  second  place,  it  is  worth  while  to 
note  how  Hamilton's  predictions  have  been  com- 
pletely disproved  by  the  experience  of  history. 
"It  will  always  be  more  easy,"  he  wrote,  "for 
the  State  governments  to  encroach  upon  the  na- 
tional authority  than  for  the  National  government 
to  encroach  upon  the  State  authorities."  This 
idea  was  several  times  repeated.  "It  should  not 
be  forgotten,"  he  wrote  again,  "that  a  disposi- 
tion in  the  State  governments  to  encroach  upon  the 
rights  of  the  Union  is  quite  as  probable  as  a  dis- 
position in  the  Union  to  encroach  upon  the  rights 
of  the  State  governments."     A  contest  between 


AND  NECESSITY  37 

the  two,  he  declared,  "will  be  most  apt  to  end  to 
the  disadvantage  of  the  Union."  It  is  difficult 
to  reconcile  these  statements  with  Hamilton's  ad- 
mittedly keen  political  foresight.  If  he  did  not 
realize  that  the  strong  central  government  for 
which  he  argued,  a  government  with  authority  to 
levy  taxes  and  regulate  commerce  among  the 
States,  would  be  more  powerful  than  any  one 
State,  his  political  acumen  has  been  over-rated; 
while  if  he  did  appreciate  it,  he  deliberately  mis- 
led the  people  in  his  overwhelming  desire  to  secure 
the  ratification  of  the  Constitution.  In  either  case, 
history  has  fully  demonstrated  the  falsity  of  his 
position. 

Despite  much  misgiving  on  the  part  of  the  few, 
the  great  mass  of  the  people  pushed  ahead  under 
the  new  Federal  government,  halting  for  a  mo- 
ment when  they  elected  Jefferson  to  succeed 
Adams,  but  finding  that  Jefferson  could  forget  his 
strict  constructionist  ideas  and  become  an  expan- 
sive nationalist  when  the  opportunity  to  purchase 
Louisiana  presented  itself.  Steadily  the  spirit  of 
Federalism  grew.  There  were,  of  course,  many 
problems,  and  some  outward  expressions  of  dis- 
content over  the  exercise  of  Federal  power  at 
the  expense  of  the  rights  of  the  States.     The 


38      FEDERAL  POWER:    ITS  GROWTH 

conflicts  were  frequent  and  intense.  In  1793, 
four  years  after  the  government  was  established, 
the  Supreme  Court  of  the  United  States,  in  the 
famous  case  of  Chisholm  vs.  Georgia,  decided 
that  a  citizen  of  one  State  could  sue  another  State 
in  the  Federal  courts.  This  decision  laid  all  the 
States  liable  to  suits  to  compel  payment  of  debt 
obligations  and  caused  much  dissatisfaction  and 
even  alarm.  The  Georgia  House  of  Representa- 
tives angrily  declared  that  such  assumption  of 
Federal  authority  would  "effectually  destroy  the 
retained  sovereignty  of  the  State,"  would  render 
the  States  nothing  but  tributary  corporations  of 
the  United  States  Government,  and  added  that 
the  State  would  not  be  bound  by  the  judgment 
of  the  Federal  court.  More  than  this,  the  State 
legislature  passed  a  law  providing  that  any  person 
attempting  to  carry  out  the  decree  of  the  Federal 
court  by  seizing  property  within  the  State  should 
be  hung  without  benefit  of  clergy.  Other  States, 
including  Massachusetts  and  New  Hampshire, 
also  protested,  but  without  immediate  result. 
Five  years  elapsed  before  the  ratification  of  the 
eleventh  amendment  to  the  Constitution,  which 
forbids  the  extension  of  the  judicial  power  of  the 
United  States  to  any  suit  commenced  or  prose- 


AND  NECESSITY  39 

cuted  against  one  of  the  United  States  by  citizens 
of  another  State.  The  remonstrances  of  one  or 
two  States  against  alleged  degradation  at  the 
hands  of  the  Federal  government  were  certainly 
not  provocative  of  swift  redress  on  the  part  of  the 
people. 

Still  more  illustrative  of  the  growth  of  the  Fed- 
eral sentiment  even  in  those  early  days  was  the 
reception  given  to  the  protest  of  Virginia  and 
Kentucky  against  the  Alien  and  Sedition  Laws. 
The  Alien  Law  gave  the  President  power  to  order 
out  of  the  United  States  all  aliens  whom  he  judged 
dangerous  to  the  peace  and  safety  of  the  country, 
or  who  he  suspected  were  concerned  in  any  trea- 
sonable or  secret  machinations  against  the  gov- 
ernment: while  the  Sedition  Law  made  it  an  of- 
fense punishable  by  fine  and  imprisonment  to 
"write,  print,  utter,  or  publish,  any  false,  scanda- 
lous, or  malicious  writings  against  the  government, 
either  house  of  Congress,  or  the  President."  Im- 
mediately the  legislatures  of  Virginia  and  Ken- 
tucky passed  resolutions  clearly  defining  their 
opinion  as  to  the  relation  of  a  State  toward  the 
Federal  government.  The  original  draft  of  the 
Kentucky  declaration,  written  by  Jefferson,  was  an 
admirable  document,  so  far  as  its  presentation  of 


40      FEDERAL  POWER:    ITS  GROWTH 

the  rights  of  a  State  was  concerned.  "This  com- 
monwealth is  determined,"  the  resolutions  assert- 
ed, "as  it  doubts  not  its  co-States  are,  to  submit  to 
undelegated  and  consequently  unlimited  powers  in 
no  man,  or  body  of  men,  on  earth."  There  was 
also  in  the  protest  a  distinct  assertion  of  the  right 
of  nullification — a  theory  later  to  be  critically  pre- 
cipitated by  South  Carolina.  It  was,  in  effect,  a 
contention  that  the  citizen  owed  his  first  allegiance 
to  his  State,  a  principle  which  also  later  found  its 
exemplification  at  the  outbreak  of  the  Civil  War. 
The  Virginia  resolutions  were  prepared  by  Madi- 
son and  were  naturally  less  belligerent  in  tone,  but 
even  they  called  upon  all  the  States  to  co-operate 
with  Virginia  in  necessary  and  proper  measures 
for  "maintaining  unimpaired  the  authorities, 
rights  and  liberties  reserved  to  the  States  respec- 
tively, or  to  the  people."  The  value  of  the  re- 
cital of  this  incident  is  not  in  the  fact  that  the 
resolutions  were  passed,  for  that  was  quite  under- 
standable, but  in  the  attitude  of  the  other  States. 
This  shows  how  thoroughly  the  people  had  al- 
ready become  inoculated  with  Federalism.  Al- 
though the  resolutions  were  transmitted  to  all  the 
States,  there  was  no  very  general  affirmative  re- 
sponse.     On  the   contrary,    Delaware    regarded 


AND  NECESSITY  41 

them  as  "a  very  unjustifiable  interference  with  the 
general  government  and  the  constituted  authorities 
of  the  United  States,"  while  Massachusetts  went 
still  further  and  denied  the  authority  of  any  State 
to  call  into  question  the  constitutionality  of  a  Fed- 
eral law.  Pennsylvania,  in  the  same  spirit,  de- 
clared that  such  resolutions  were  calculated  to 
destroy  the  very  existence  of  the  government, 
while  New  York,  Connecticut,  New  Hampshire 
and  Vermont  all  expressed  dissent  from  Virginia's 
position. 

Although  the  objectionable  laws  were  eventually 
repealed,  the  people  were  thus  beginning  to 
acknowledge  the  commanding  position  of  the  Fed- 
eral government  and  were  inclining  to  the  belief 
that  what  the  government  did  was  right.  The 
new  idea  was  not,  however,  universal.  The  coun- 
try was  still  divided  into  two  factions — one  up- 
holding the  sovereign  character  of  the  States  and 
the  other  insisting  upon  larger  powers  for  the 
Federal  government.  The  election  of  Thomas 
Jefferson  to  the  presidency  was  a  momentary  vic- 
tory for  the  former.  The  defeat  of  the  Federal 
party  occurred  in  November,  1800.  Jefferson 
could  not  be  inaugurated  until  March  4,  1801. 
During  the  four  months  that  intervened  the  Fed- 


42      FEDERAL  POWER:    ITS  GROWTH 

eralists  executed  the  most  remarkable  coup  d'etat 
in  American  history.  They  had  lost  the  executive 
and  legislative  branches  of  the  government. 
They  determined,  however,  to  hold  the  judicial. 
Here  again  we  find  Hamilton's  judgment  to  be  ut- 
terly at  variance  with  facts.  In  his  Federalist 
papers,  discussing  the  judiciary,  he  had  minimized 
this  branch  of  the  government.  According  to  his 
view,  the  judiciary  would  never  be  a  serious  fac- 
tor. He  asserted  that  1^ie  judiciary,  from  the 
very  nature  of  its  functions,  would  be  the  least 
dangerous  to  the  political  rights  of  the  Constitu- 
tion. "The  executive,"  he  said,  "not  only  dis- 
penses the  honors  but  holds  the  sword  of  the  com- 
munity. The  legislature  not  only  commands  the 
purse,  but  prescribes  the  rules  by  which  the  duties 
and  the  rights  of  every  citizen  are  to  be  regulated. 
The  judiciary,  on  the  contrary,  has  no  influence 
either  over  the  sword  or  the  purse;  no  direction 
either  of  the  strength  or  the  wealth  of  the  society; 
and  can  take  no  active  resolution  whatever.  It 
may  truly  be  said  to  have  neither  force  nor  will, 
but  merely  judgment."  '  For  these  reasons  he  con- 
cluded that  "the  judiciary  is  beyond  comparison 
the  weakest  of  the  three  departments  of  power." 
But  now  the  Federalist  party  was  to  demon- 


AND  NECESSITY  4& 

strate  that  instead  of  being  the  weakest,  the 
judiciary  was  the  strongest  of  the  three  depart- 
ments of  power,  for  it  enacted,  on  the  eve  of  its 
ejection  from  control,  a  law  adding  six  new  circuit 
and  twenty-two  district  judges  to  the  Federal  ju- 
diciary. More  than  this,  President  Adams,  within 
twenty  days  of  the  expiration  of  his  term,  took 
John  Marshall  out  of  his  cabinet,  in  which  he 
was  Secretary  of  State,  and  appointed  him  Chief 
Justice  of  the  Supreme  Court  of  the  United  States. 
The  importance  of  this  action  upon  the  develop- 
ment of  the  Federalistic  spirit  in  the  United  States 
cannot  be  overestimated.  In  the  appointment  of 
Marshall  the  doom  of  the  doctrine  of  the  sover- 
eignty of  the  States  was  sealed.  Still  further,  the 
time  was  to  come,  in  the  evolution  of  Federalism, 
when  the  Supreme  Court  would  direct  the  strength 
and  especially  the  wealth  of  society  by  decisions 
affecting  the  organization  of  gigantic  corporations, 
involving  the  regulation  and  distribution  of 
swollen  fortunes. 


44      FEDERAL  POWER:    ITS  GROWTH 


Chapter  III 

THE  FEDERALISTS  INFLUENCE  OF 
JOHN  MARSHALL 

THE  period  between  1801  and  1835  marked 
another  epoch  in  the  growth  of  the  Fed- 
eralistic  spirit  in  the  United  States.  During  these 
thirty-four  years  John  Marshall,  of  Virginia,  was 
Chief  Justice  of  the  Supreme  Court  of  the  United 
States.  It  was  the  formative  period  of  the  na- 
tion. The  Constitution  had  been  adopted,  it  is 
true,  but  the  great  Federal  principle  which  under- 
lay its  adroit  phrasing  was  but  dimly  realized. 
Men  viewed  its  provisions  according  to  their  own 
convictions.  There  had  been  no  definite  expres- 
sion and  upon  the  character  of  this  expression 
depended  the  future  of  the  republic. 

Marshall  spoke  the  words  which  emphasized 
nationality.  It  is  useless  now  to  speculate  upon 
what  might  have  been  our  destiny  if  a  man  of  the 
Jeffersonian  manner  of  thinking  had  been  placed 
in  the  position  which  Marshall  occupied.     It  is 


AND  NECESSITY  45 

possible  the  whole  trend  of  our  history  might  have 
been  changed  and  that  instead  of  a  centralized 
government,  steadily  increasing  in  strength,  we 
should  have  had  a  league  of  independent  but  weak 
States,  lacking  the  binding  force  of  nationality. 
So  great  was  the  influence  which  Marshall 
exerted,  so  lasting  was  the  effect  of  his  de- 
cisions, that  some  reference  to  his  personality  is 
not  inappropriate,  even  though  the  story  of  his 
life  may  not  be  unfamiliar.  In  following  the 
growth  of  Federal  power  in  the  United  States  his 
figure  occupies  such  a  commanding  position  that 
it  can  neither  be  overlooked  nor  minimized.  He 
had  been  rightfully  characterized  as  a  nation- 
builder.  In  the  face  of  a  hostile  executive  and  a 
hostile  Congress  he  upheld  the  banner  of  national- 
ism and  not  only  his  courage  and  force  but  the 
far-reaching  effect  of  his  views  transformed  the 
judiciary  from  a  coordinate  into  a  dominating 
factor  in  our  system  of  government.  To-day  we 
are  beginning  to  question  whether  the  courts  have 
the  right  to  the  last  word  upon  questions  affect- 
ing the  interpretation  of  constitutional  provisions 
— a  subject  inviting  discussion  were  it  not  for  the 
fact  that  it  would  lead  too  far  afield.  Suffice  it 
to  say  that  it  will  take  some  time  to  dislodge  from 


46      FEDERAL  POWER:    ITS  GROWTH 

the  public  mind  the  idea  of  judicial  supremacy 
inculcated  by  Marshall  and  coming  down  to  us 
through  many  years. 

Profound  convictions  are  not  uttered  upon  the 
spur  of  the  moment  but  are  the  concrete  expression 
of  accumulated  observation  and  associations.  This 
was  eminently  true  of  Marshall's  decisions.  The 
judgments  which  he  rendered  as  Chief  Justice  of 
the  Supreme  Court  of  the  United  States  were  as 
inevitable  as  the  following  of  an  effect  upon  its 
cause.  He  had  no  hesitation  in  ascribing  his  devo- 
tion to  the  idea  of  union,  and  to  a  government 
competent  to  its  preservation,  at  least  as  much  to 
current  events  as  to  theoretical  reasoning.  He  was 
imbued,  he  said,  with  the  maxim,  "United  we 
stand,  divided  we  fall,"  and  it  became  a  part  of  his 
being.  In  the  army,  for  he  had  served  with  great 
credit  during  the  Revolution,  he  was  confirmed  in 
the  habit  of  considering  "America  as  my  country 
and  Congress  as  my  government."  The  lesson  of 
the  war  with  Great  Britain,  when  an  almost  impo- 
tent Congress  had  more  than  once  jeopardized  vic- 
tory, had  not  been  lost  upon  his  observing  mind. 
He  had  seen  how  the  jealousies  of  the  States  had 
intervened;  how  the  lack  of  Federal  power  in 
the  government  had  paralyzed  its  efforts;  and  he 


AND  NECESSITY  47 

felt  that  the  republic  could  not  survive  unless  all 
this  was  changed.  In  so  far  as  he  had  been  able 
he  had  upheld  the  hands  of  Washington  and  the 
Federalists.  He  had  fought  for  the  ratification  of 
the  Constitution  in  the  Virginia  legislature,  defeat- 
ing Patrick  Henry  by  the  force  of  logic  against 
eloquence;  he  had  won  a  seat  in  Congress  at 
the  hands  of  a  hostile  electorate  through  mere 
strength  of  character  and  personal  popularity;  he 
had  defended  President  Adams  upon  the  floor  of 
the  House  against  a  resolution  of  censure  for 
surrendering  to  the  British  government  a  sailor 
accused  of  murder;  he  had  steadfastly  maintained, 
in  controversy  with  Jefferson,  the  Federal  theory 
of  government;  and,  finally,  as  Secretary  of 
State  under  Adams,  he  had  emphasized  in  his 
official  correspondence  the  national  character  of 
the  government  which  he  represented.  Above  all, 
he  was  skilled  in  the  law.  He  was,  therefore,  a 
person  of  no  uncertain  quality.  He  had  been  tried 
in  the  balance  and  not  found  wanting.  President 
Adams  was  making  no  experiment  when  he  select- 
ed John  Marshall  to  be  the  expounder  of  the  Fed- 
eral doctrine  in  the  court  of  last  resort.  Whether 
he  fully  appreciated  the  future  consequences  of 
his  act  may,  indeed,  be  a  matter  of  doubt;  but 


48      FEDERAL  POWER:    ITS  GROWTH 

history  can  never  acquit  him  of  indulging  in  the 
hope  that  in  some  measure,  at  least,  he  had  check- 
mated the  temporary  triumph  of  the  men  who 
believed  more  in  a  confederation  of  petty  but  in- 
dependent sovereignties  than  in  the  subordination 
of  these  jurisdictions  to  Federal  power. 

It  so  happened  that  an  opportunity  was  imme- 
diately afforded  to  Marshall  to  emphasize  his 
views.  William  Marbury,  a  citizen  of  the  Dis- 
trict of  Columbia,  sought  to  compel  James  Madi- 
son, Secretary  of  State,  to  deliver  to  him  a  com- 
mission of  appointment  as  justice  of  the  peace, 
signed  by  President  Adams  and  to  which  the  seal 
of  the  State  Department  had  been  affixed,  but 
which  had  not  been  delivered  before  Mr.  Adams 
vacated  the  presidential  office.  Chief  Justice  Mar- 
shall, although  he  did  not  issue  the  mandamus, 
decided  that  the  Secretary  of  State  ought  to  sur- 
render the  commission  and  then  took  occasion  to 
enunciate  his  ideas  as  to  the  nature  of  the  govern- 
ment. He  upheld  the  Constitution  as  supreme, 
not  to  be  violated  by  any  of  the  coordinate 
branches  of  the  Government.  He  declared  that 
the  Supreme  Court  had  the  right  to  review  the 
acts  of  the  national  legislature  and  of  the  execu- 
tive— a  declaration  accepted  to-day  without  pro- 


AND  NECESSITY  49 

test,  but  very  revolutionary  to  the  public  mind  in 
1803.  Jefferson,  for  instance,  uttered  fierce  de- 
nunciation, and  one  of  Marshall's  colleagues  on 
the  bench  exclaimed  that  "the  American  people 
can  no  longer  enjoy  the  blessings  of  a  free  gov- 
ernment whenever  the  State  sovereignties  shall 
be  prostrated  at  the  feet  of  the  general  govern- 
ment." Jefferson,  foreseeing  and  fearing  the 
power  of  the  Federal  judiciary,  sought  to  em- 
barrass its  operations  by  instigating  at  least  two 
impeachments,  one  of  which  succeeded  on  account 
of  the  admitted  incapacity  of  the  judge,  and  the 
other  ignominiously  failed. 

In  the  midst  of  the  storm  which  he  had  created 
Marshall  pursued  his  undaunted  way.  Decision 
followed  decision,  each  one  striking  more  and 
more  at  the  so-called  sovereignty  of  the  States  and 
extolling  not  only  the  necessity  but  the  benefits  of  a 
strong  Federal  government.  In  the  case  of  the 
United  States  against  Peters,  he  declared  that  the 
legislature  of  a  State  could  not  annul  the  judgment 
of  the  courts  of  the  United  States  and  destroy  the 
rights  acquired  under  those  judgments.  In  the 
case  of  Fletcher  against  Peck  he  decided  that  the 
constitutionality  of  a  law  passed  by  a  State  legisla- 
ture was  a  question  within  the  jurisdiction  of  a 


50     FEDERAL  POWER:    ITS  GROWTH 

Federal  court.  In  McCulloch  vs.  Maryland  the 
decision  was  to  the  effect  that  a  State  had  no  right 
to  lay  a  tax  upon  an  institution  chartered  by  Con- 
gress, the  statement  being  made  that  if  one  Fed- 
eral institution  could  be  taxed,  so  could  the  mail, 
the  mint  and  the  custom-house ;  and  with  the  added 
remark  that  the  American  people  "did  not  desire 
their  government  to  depend  upon  the  States."  The 
supremacy  of  a  Congressional  enactment  to  any 
State  law  was  asserted  in  the  case  of  Cohens  vs. 
Virginia,  which  concerned  a  man  arrested  and 
fined  under  the  State  law  for  selling  lottery  tickets, 
although  the  lottery  existed  in  Washington  under 
the  authority  of  a  Federal  statute.  The  State  of 
Virginia  was  emphatically  advised  that  the  Su- 
preme Court  of  the  United  States  had  jurisdiction 
over  cases  arising  under  Federal  laws. 

It  is  impossible,  of  course,  even  to  mention, 
much  less  review  in  detail,  the  thirty-six  decisions 
which  Mr.  Marshall  wrote  in  connection  with 
Federal  questions,  but  there  are  two  others  to 
which  reference  must  be  made  on  account  of  their 
ultimate  effect  in  determining  the  Federal  char- 
acter of  the  government.  The  first  was  the  Dart- 
mouth College  case,  in  which  the  constitutional 
provision  against  the  impairment  of  an  obliga- 


AND  NECESSITY  51 

tion  of  contract  was  held  to  apply  to  a  charter 
granted  to  a  corporation  notwithstanding  State 
legislation.  This  decision  stands  to-day  as  the 
main  element  of  stability  in  corporate  enterprise. 
The  other  case  was  that  of  Gibbons  vs.  Ogden. 
The  problem  in  this  case  would  not  be  deemed 
to-day  worthy  of  a  moment's  consideration  and 
is  only  cited  as  showing  how  jealous  were  the 
States  of  their  independence  in  the  early  stages 
of  our  history.  Two  citizens  of  New  York,  Ful- 
ton and  Livingstone,  had  been  granted  by  the 
legislature  of  that  State  the  exclusive  right  to 
navigate  the  waters  of  the  State  with  steamboats 
and  had  sub-leased  the  privilege  to  Ogden.  A 
citizen  of  New  Jersey  named  Gibbons,  operating 
under  a  coasting  trade  license  issued  by  the  Fed- 
eral government  under  a  Federal  law,  had  in- 
vaded the  New  York  waters  and  had  been  ordered 
by  the  New  York  courts  to  desist.  He  thereupon 
appealed  to  the  United  States  Supreme  Court  for 
protection  in  the  use  of  a  navigable  river.  It  seems 
trivial  enough  nowadays,  this  controversy  over 
New  York's  claim  to  exclusive  jurisdiction,  but  it 
was  no  simple  matter  then.  The  contention  of  the 
State  was  swept  aside  with  ruthless  hand.  More 
than  this,  the  power  of  the  United  States  to  regu- 


52      FEDERAL  POWER:    ITS  GROWTH 

late  commerce  among  the  States  was  set  forth 
with  such  lucidity  and  emphasis  that  the  prin- 
ciples which  Marshall  enunciated  remain  prac- 
tically unchanged  to  the  present  day.  The  au- 
thority of  the  Federal  government  in  dealing 
with  commerce,  while  resting  primarily  upon  the 
Constitution,  was  given  a  width  of  range  in  this 
decision,  written  nearly  a  century  ago,  which  still 
stands  unrestricted.  "In  war,"  said  Marshall, 
"we  are  one  people.  In  making  peace  we  are  one 
people.  In  all  commercial  relations  we  are  one 
and  the  same  people."  This  was  the  keynote  of 
his  views.  The  distinction  which  he  drew  be- 
tween the  people  and  the  States  must  be  borne  in 
mind  to-day  when  it  is  the  people  who,  through 
the  Federal  Congress,  are  gradually  atrophying 
the  legislatures  of  the  States. 

Larger  and  larger  were  the  powers  and  au- 
thorities which,  in  opinion  succeeding  opinion, 
Marshall  gave  not  only  to  the  Supreme  Court  but 
to  the  President  and  to  Congress,  all  of  them 
agents  of  the  Federal  government.  There  were 
strict  and  narrow  constructionists  of  the  Constitu- 
tion in  those  days — many  more,  in  fact,  than  there 
are  to-day — but  Marshall  brushed  them  aside 
with  scant  consideration.    To  his  mind  they  were 


AND  NECESSITY  53 

obstacles  in  the  path  of  progress.  He  scorned 
their  reasoning,  under  which,  to  use  his  own 
words,  the  Constitution  would  still  be  a  magnifi- 
cent structure  to  look  at,  but  totally  unfit  for  use. 
Under  the  tremendous  force  of  his  logic,  coupled 
with  a  stern  realization  of  its  truth,  the  Federal 
instinct  developed.  The  American  people  began 
to  accept  largely,  if  not  universally,  the  doctrine 
of  "the  subordination  of  the  parts  to  the  whole, 
rather  than  the  complete  independence  of  any 
one  of  them."  They  were  compelled  to  agree 
with  him,  even  against  their  will,  that  the  gov- 
ernment would  be  "a  mere  shadow  unless  invested 
with  large  portions  of  that  sovereignty  which  be- 
longs to  independent  States."  Perhaps,  after  all, 
they  were  most  impressed  with  the  depth  and  sin- 
cerity of  his  convictions.  Certainly  sentences  like 
these,  used  in  beginning  one  of  his  decisions,  must 
have  made  a  profound  impression  upon  the  public 
mind: 

The  Constitution  of  our  country,  in  its  most 
interesting  and  vital  parts,  is  to  be  considered; 
the  conflicting  powers  of  the  government  of  the 
Union  and  of  its  members,  as  marked  in  that 
Constitution,  are  to  be  discussed  and  an  opinion 
given,  which  may  essentially  influence  the  great 
operations  of  the  government.     No  tribunal  can 


54     FEDERAL  POWER:    ITS  GROWTH 

approach  such  a  question  without  a  deep  sense 
of  its  importance,  and  of  the  awful  responsibility 
involved  in  its  decision.  But  it  must  be  decided 
peacefully  or  remain  a  source  of  hostile  legislation, 
perhaps  of  hostility  of  a  st?l  more  serious  nature; 
and  if  it  is  to  be  so  decided,  by  this  tribunal  alone 
can  the  decision  be  made.  On  the  Supreme  Court 
of  the  United  States  has  the  Constitution  of  our 
country  devolved  this  important  duty. 

In  this  reverential  and  solemn  spirit  did  Mar- 
shall approach  and,  with  his  colleagues,  decide  the 
momentous  questions  that  determined  the  absolute 
unity  and  solidity  of  these  United  States.  When 
he  wrote  these  words,  he  was  not  building  igno- 
rantly,  even  though  he  may  have  been  building 
wiser  than  he  knew.  He  had  the  eye  of  a  seer 
and  foresaw  plainly  that  if  his  views  remained 
as  the  law  of  the  land  there  could  be  but  one 
outcome,  the  obliteration  of  State  lines.  The 
period  which  he  pictured  is  upon  us.  Surely  the 
thirty-four  years  during  which  he  sat  upon  the 
bench  must  be  regarded  as  epochal.  It  stands 
out  in  history  as  a  milestone  from  which  to  meas- 
ure further  advance. 

Beginning  his  career  upon  the  Supreme  Bench 
with  the  executive  and  Congress  and  a  majority 
of  people  anti-Federalist  in  their  views,  Marshall 


AND  NECESSITY  55 

lived  to  see  the  river  of  Federalism  grow  wider 
and  deeper.  His  first  decision,  in  the  case  of 
Marbury  vs.  Madison,  coming,  as  it  did,  like  a 
thunderbolt  out  of  a  clear  sky,  had  aroused  in- 
dignant protest;  his  last  decision,  although  no  less 
uncompromising  in  its  limitation  on  supposed 
rights  of  the  States,  was  accepted  as  expressing 
what  had  become  a  settled  principle.  In  the  mean- 
time much  had  happened.  The  War  of  1812,  for 
instance,  had  done  much  to  awaken  national  spirit 
and  the  Star-Spangled  Banner,  as  the  national  em- 
blem, filled  the  public  eye.  There  were  proposi- 
tions in  Congress  relating  to  a  new  national  cur- 
rency, a  national  university  and  the  national  im- 
provement of  highways.  The  act  re-chartering 
the  Bank  of  the  United  States  was  passed  in  1816, 
the  institution  being  destined  later  to  figure  promi- 
nently in  a  bitter  dispute  as  to  the  abuse  of  its 
great  power.  In  the  same  year  a  tariff  law  was 
passed  and  Congress  also  provided  for  national 
improvements.  All  these  extensions  of  Federal 
authority  were  not  accomplished,  however,  with- 
out much  protest  and  criticism.  This  antagonism 
is  mentioned  merely  to  emphasize  the  fact  that 
it  was  futile  and  has  been  forgotten.  Over  all 
was   spread   the    aegis   of    Marshall's   decisions. 


56     FEDERAL  POWER:    ITS  GROWTH 

These  inspired  the  American  people  with  the 
greatness  of  the  government  they  had  formed. 
Their  principles  have  since  found  permanent 
lodgment  in  the  American  mind  because  they  were 
founded  upon  everlasting  verity. 


1 


AND  NECESSITY  57 


Chapter  IV 

THE  CIVIL  WAR  AND  ITS  CONSEQUENCES 

THE  period  between  the  death  of  Chief  Jus- 
tice Marshall  and  the  beginning  of  the 
Civil  War  was  notable  for  a  marked  indisposition 
on  the  part  of  the  American  people  squarely  to 
meet  the  issue  of  a  centralized  government. 

While  the  national  spirit  grew,  there  was  still  a 
^prevalent  idea  that  the  States  were  worthy  of  con- 
sideration. Even  though  the  national  pride  had 
been  stimulated  by  the  victories  of  Perry  at  Lake 
Erie  and  Jackson  at  New  Orleans,  there  had  been 
a  gathering  of  New  England  men  at  Hartford  to 
protest  against  the  powers  of  Congress  in  matters 
pertaining  to  war  and  the  laying  of  embargoes, 
while  there  was  a  strong  objection  to  the  refusal 
of  the  United  States  to  pay  for  the  expense  of  de- 
fending Massachusetts  and  Connecticut  because 
those  States  would  not  place  their  militia  under 
the  control  of  the  Federal  government.  Jefferson 
sought  to  check  the  tide  of  Federal  power  by 


58      FEDERAL  POWER:    ITS  GROWTH 

frowning  upon  Congressional  appropriations  for 
local  improvements  and  Madison  vetoed  a  bill 
which  carried  money  for  the  Cumberland  road. 
Whenever  the  country  was  brought  squarely  up 
against  the  question  as  to  which  was  supreme,  the 
nation  or  the  State,  some  way  was  found  to  avoid 
a  direct  answer.  There  was  compromise  in  the 
admission  of  Missouri,  the  demand  of  the  set- 
tlers of  that  territory  that  they  be  granted  the 
right  to  hold  slaves  being  accorded,  but  it  being 
also  agreed  that  the  slave-holding  area  otherwise 
should  not  extend  north  of  a  line  drawn  west 
of  Missouri  on  the  parallel  of  360  30'.  The 
rights  of  a  territory,  or  even  a  State,  under  the 
Constitution,  were  still  unsettled  when  Kansas 
and  Nebraska  sought  admission,  and  when  Con- 
gress threw  the  problem  back  to  the  people  the 
struggle  between  the  free-soilers  and  the  would-be 
slave-holding  element  led  to  sanguinary  encoun- 
ters. In  the  case  of  South  Carolina  the  question 
of  State  rights  was  acutely  presented.  The  South 
Carolina  legislature  declared  that  the  Federal 
tariff  should  be  regarded  as  null  and  void  within 
the  State  borders.  This  aroused  the  anger  of 
the  irascible  Jackson,  who,  although  he  had  once 
advised  Congress  against  all  encroachments  upon 


AND  NECESSITY  59 

the  legitimate  sphere  of  State  sovereignty,  now 
threatened  to  personally  hang  upon  the  nearest 
tree  any  person  who  disobeyed  the  Federal  law. 
"The  Federal  union, "  he  dramatically  exclaimed, 
"it  must  be  preserved.,,  Calhoun  insisted  that  a 
State  had  the  right  to  nullify,  while  Webster 
argued  with  wonderful  eloquence  and  logic  for 
national  supremacy.  Still,  no  one  seemed  to  care 
to  meet  the  issue  face  to  face  and  again  there  was 
a  compromise  in  which  Congress  agreed  to  respect 
the  basis  of  South  Carolina's  protest  and  adjust 
the  tariff  upon  lines  which  were  not  wholly  objec- 
tionable to  the  South. 

It  is  not  strange  that  in  those  days  men  were 
unwilling  to  go  to  the  extreme  of  full  accepta- 
tion of  Federal  domination.  It  is  true  that  the 
country  was  developing  tremendously,  that  new 
States  were  being  added  to  the  union,  that  the  rail- 
roads and  the  telegraph  were  about  to  become 
powerful  factors  in  the  growth  of  commerce,  and 
that  it  was  evident  that  the  United  States  was  des- 
tined to  become  one  of  the  great  nations  of  the 
world.  At  the  same  time,  the  old  Federalist  party 
had  practically  disappeared;  there  was  still  the 
memory  of  the  part  which  the  States  had  played  in 
the  formation  of  the  union;  and  there  was  no 


60      FEDERAL  POWER:    ITS  GROWTH 


desire  to  make  complete' the  partial  surrender  of 
State  jurisdiction  and  State  operation  which  had 
made  the  union  possible.  No  man,  however,  can 
serve  two  masters.  There  could  not  be  an  equality 
between  the  State  and  the  nation.  The  weaker 
must  give  way  to  the  stronger.  The  part  could 
not  be  greater  than  the  whole.  It  was  inevitable 
that  the  question  had  to  be  settled,  even  though 
the  decision  necessitated  a  fratricidal  struggle. 
Even  when  the  clouds  were  darkest  the  regard 
for  the  rights  of  the  States  was  evident.  The  po- 
litical conventions  of  i860  carefully  ignored  all 
reference  to  the  troublous  issue,  and  even  Presi- 
dent Lincoln,  in  his  inaugural  address,  while  he 
emphasized  the  perpetuity  of  the  union,  was  will- 
ing to  agree  that  the  status  quo  should  be  pre- 
served. Viewed  through  the  perspective  of  time, 
the  most  remarkable  thing  about  the  generation 
between  Marshall's  judicial  service  and  the  Civil 
War  was  the  reluctance  with  which  the  nation 
approached  the  conclusion  that  the  Federal  gov- 
ernment is,  and  must  necessarily  be,  supreme. 

Then  came  the  war,  and  with  it  an  exercise 
of  Federal  power  far  beyond  the  wildest  flights 
of  the  Hamiltonian  imagination.  There  was  no 
longer  thought  of  compromise  or  possibility  of 


AND  NECESSITY  61 

evasion.  The  issue  had  to  be  squarely  met.  There 
was  some  muttering  as  larger  and  larger  powers 
were  assumed  by  the  heroic  Lincoln  and  by  Con- 
gress, while  the  restrictions  of  the  Constitution 
were  ignored.  In  his  inaugural  message  Lincoln 
had  suggested  that  "the  power  confided  to  me  will 
be  used  to  hold,  occupy  and  possess  the  property 
and  places  belonging  to  the  Government  and  col- 
lect the  duties  and  imposts,  but  beyond  what  will 
be  necessary  for  these  objects  there  will  be  no 
invasion."  More  than  this,  he  had  discussed  in 
temperate  fashion  the  maintenance  inviolate  of 
the  rights  of  the  States  and  had  quoted  with  appar- 
ent approval  the  constitutional  guarantee  for  the 
return  of  escaped  slaves.  Whe^  after  Sumter 
had  been  fired  upon,.  Congress  met  on  the  4th  of 
July,  he  submitted  an  argument  aimed  at  the 
destruction  of  the  last  vestige  of  so-called  State 
sovereignty.  He  asserted  that  not  one  of  the 
States  had  ever  been  a  State  out  of  the  union — 1 
a  point  previously  emphasized  by  Webster  in  his 
reply  to  Haynes.  The  original  colonies  became 
"free  and  independent  States"  in  name  only  when 
the  Declaration  of  Independence  was  signed. 
The  union,  he  showed,  had  created  the  States. 
"Having  never  been  States,  either  in  substance  or 


62      FEDERAL  POWER:    ITS  GROWTH 

in  name,"  he  argued,  "outside  of  the  union, 
whence  this  magical  omnipotence  of  'State  rights,' 
asserting  a  claim  of  power  to  lawfully  destroy  the 
union  itself?  Much  is  said  about  the  'sovereignty' 
of  the  States,  but  the  word  even  is  not  in  the  na- 
tional Constitution,  nor,  as  is  believed,  in  any  of 
the  State  Constitutions.  What  is  a  'sovereignty' 
in  the  political  sense  of  the  term?  Would  it  be 
far  wrong  to  define  it  'a  political  community  with- 
out a  political  superior?'  Tested  by  this,  no  one 
of  our  States,  except  Texas,  ever  was  a  sov- 
ereignty, and  even  Texas  gave  up  that  character 
on  coming  into  the  union,  by  which  act  she 
acknowledged  the  Constitution  of  the  United 
States  and  the  laws  and  treaties  of  the  United 
States  made  in  pursuance  of  the  Constitution  to 
be  for  her  the  supreme  law  of  the  land." 

This  was  new  doctrine  to  be  laid  before  the 
American  people  but  the  inevitable  logic  of  cir- 
cumstances compelled  its  acceptance.  Lincoln 
gave  force  to  his  utterance  by  acts  which,  under 
any  other  conditions,  would  have  led  to  his  im- 
peachment. He  called  for  militia  volunteers  to 
serve  for  three  years,  and  for  large  additions  to 
the  army  and  navy,  without  waiting  for  Congress 
to  exercise  a  power  under  the  Constitution;  he 


AND  NECESSITY  63 

issued  a  proclamation  blockading  the  ports  of  the, 
southern  States;  and,  finally,  because  of  disturb- 
ances in  Maryland  he  directed  the  suspension 
of  the  writ  of  habeas  corpus  at  any  point  of  the 
military  line  between  Philadelphia  and  Washing- 
ton, a  territory  not  in  rebellion.  Lincoln  ex- 
plained to  Congress  that  "these  measures,  whether 
strictly  legal  or  not,  were  ventured  upon  under 
what  appeared  to  be  a  popular  demand  and  a 
public  necessity,  trusting  then,  as  now,  that  Con- 
gress would  ratify  them."  He  justified  his  action 
in  suspending  the  writ  of  habeas  corpus,  also,  on 
the  ground  that  a  dangerous  emergency  existed, 
although  he  expressed  a  doubt  whether  the  power 
was  vested  in  him  or  in  Congress.  Judge  Taney, 
acting  in  the  District  Court,  decided  that  his  ac- 
tion was  unconstitutional.  Afterwards  Congress, 
representing  the  people,  stepped  into  the  breach 
and  exercised  the  authority  to  the  extent  of  direct- 
ing the  suspension  of  the  writ  throughout  the 
United  States. 

Every  year  of  the  war  made  the  people  more 
and  more  familiar  with  the  omnipotence  of  the 
Federal  government.  They  accepted,  not  alto- 
gether without  mental  reservation,  the  seizure  of 
persons  by  Federal  authorities  in  peaceful  States, 


64      FEDERAL  POWER:    ITS  GROWTH 

the  prisoners  being  denied  either  the  writ  of 
habeas  corpus  or  trial  by  jury.  The  provisions  of 
the  Constitution  which  guaranteed  to  the  people 
that  the  right  to  be  secure  in  their  persons,  houses, 
papers  and  effects,  against  unwarrantable  searches 
and  seizures,  shall  not  be  violated;  which  forbid 
arrest  without  warrant,  and  which  assure  each 
accused  person  "a  speedy  and  public  trial  by  an 
impartial  jury,"  were  daily  disregarded.  The  so- 
called  Confiscation  Act,  by  which,  through  legis- 
lative enactment,  millions  of  dollars'  worth  of 
property  were  declared  forfeited,  although  a  sup- 
plemental joint  resolution  provided  that  real  estate 
forfeiture  was  not  to  extend  beyond  the  natural 
life  of  the  offenders  who  came  within  the  provis- 
ions of  the  Act,  was  but  one  of  the  many  examples 
of  the  extent  to  which  the  Federal  government 
could  and  did  go.  Practical  illustrations  of  the 
power  of  the  Federal  government  were  visible  on 
every  hand.  There  was  not  time  to  question  or 
to  reason.  Throughout  the  whole  length  and 
breadth  of  the  land  there  was  universal  acqui- 
escence in  the  most  extreme  measures  because  it 
could  not  be  otherwise.  When  it  was  treason  to 
utter  a  thought  which  reflected  upon  the  Federal 
government,  the  people  learned  to  respect,  if  not 


AND  NECESSITY  65 

always  to  love,  the  authority  which  that  govern- 
ment exercised  with  unsparing  hand.  "Central- 
ization," says  Dunning,  in  his  "Essays  on  the  Civil 
War  and  Reconstruction,"  "was  the  order  of  the 
day.  Conspicuous  among  the  illustrations  of  this 
fact  appear  the  substitution  of  a  national  for  a 
State  system  of  banking  and  currency;  the  crea- 
tion of  a  national  militia  system  to  occupy  the 
field  once  held  by  the  State  systems,  and  the 
sweeping  jurisdiction  conferred  by  the  Habeas 
Corpus  Act  upon  the  national  judiciarv  at  the  ex- 
pense of  the  State  courts." 

Nor  was  this  all.  Through  the  fourteenth  and 
fifteenth  amendments  to  the  Constitution  the  peo- 
ple were  to  learn  that  the  States  could  be  told 
what  they  could  do  and  could  not  do  respecting 
their  citizens  in  the  matter  of  equal  enjoyment 
of  privileges  and  immunities  and  the  right  to  vote. 
In  their  provisions  these  amendments  were  far 
more  definitive  of  the  subordinate  character  of  a 
State  than  any  previous  clause  in  the  Constitution 
and  they  never  could  have  been  adopted  if  the 
Nation  had  not  loomed  large  in  the  public  mind. 
This  same  point  of  view  tolerated  strong  meas- 
ures by  the  Federal  government  in  the  reconstruc- 
tion period  and  enabled  proclamations  to  be  issued 


66      FEDERAL  POWER:    ITS  GROWTH 

and  laws  to  be  passed  which  would  not  have  been 
possible  before  1861.  It  is  not  within  the  prov- 
ince of  this  work  to  enter  upon  a  political  history 
of  the  war  period,  although  the  subject  deserves 
adequate  treatment,  while  the  volumes  on  the 
military  history  form  a  library  in  themselves. 
Our  present  purpose  is  to  emphasize  the  psycho- 
logical effect  upon  the  American  people  of  wit- 
nessing demonstration  after  demonstration  of  the 
transcendent  power  of  the  Federal  government. 
Amid  the  excitement  and  the  peril  which  followed 
the  fall  of  Sumter  there  was  neither  opportunity 
nor  disposition  to  analyze  too  closely  the  acts  of 
the  President  and  of  Congress;  and  later  in  the 
war  the  people  became  callous  to  the  widest  ex- 
ercise of  Federal  authority.  They  realized  that 
"the  bundle  of  sticks"  had  become  compressed 
under  the  stress  of  war  into  one  compact  piece  of 
timber.  The  doctrine  of  State  sovereignty  had 
been  literally  re-cast  in  the  fiery  furnace.  The 
people  were  permeated  with  the  spirit  of  na- 
tional union.  It  was  not  the  governments  at 
Springfield  or  Albany  or  Harrisburg,  but  the  Gov- 
ernment at  Washington  which  still  lived.  The 
eyes  of  the  nation  were  thereafter  to  be  focused 
upon  the  national  capital.     The  political  entities 


AND  NECESSITY  67 

of  the  States  became  overshadowed  by  the  na- 
tional feeling.  The  outlines  of  the  Federal  gov- 
ernment, on  the  other  hand,  stood  out  against  the 
horizon  like  the  Parthenon  on  the  Acropolis  at 
Athens,  distinct,  commanding  and  supreme. 


68      FEDERAL  POWER:    ITS  GROWTH 


Chapter  V 

THE  DOCTRINE  OF  PARAMOUNT  NECESSITY 

THE  logical  result  of  the  convincing  demon- 
stration of  Federal  omnipotence  soon  be-: 
came  apparent.  The  people,  through  their  duly 
elected  Representatives,  instinctively  turned  to  the 
Federal  government  to  secure  the  accomplishment 
of  reforms  which  could  not  be  reached  in  any 
other  way.  During  the  Civil  War  they  had  seen 
the  Federal  power  exercised  arbitrarily  and  some- 
times harshly,  but  always  effectively.  This  was 
the  fact  that  impressed  the  American  mind.  It 
was  the  achievement  of  results  by  direct  methods 
which  appealed  to  the  masses.  The  initiative 
toward  the  larger  manifestation  of  Federal  author- 
ity was  now  put  forth  by  the  people  themselves. 

The  first  reform  which  demanded  attention  was 
the  substitution  of  a  national  banking  system  for 
the  unsafe  and  troublesome  operation  of  State 
banks.    There  was,  of  course,  no  authority  in  the 


AND  NECESSITY  69 

Constitution  for  the  Federal  government  to  go 
into  the  States  and  throttle  these  institutions  but 
there  was  in  the  Constitution  a  provision  which 
authorized  the  levying  of  taxes.  What  could  not 
be  done  by  direct  means  could  be  accomplished  by 
indirection.  It  was  only  necessary  to  place  a  tax 
upon  all  State  bank  issues  sufficiently  high  to  ren- 
der their  circulation  unprofitable  and  the  deed  was 
done.  Such  a  law  was  enacted  in  1864  and  was 
upheld  by  the  Supreme  Court. 
-  The  extinction  of  State  bank  currency  was  ac- 
complished so  simply  and  so  easily  that  quite  nat- 
urally the  people  invoked  the  aid  of  the  Federal 
power  for  the  suppression  of  the  lottery  evil. 
Times  had  changed  since  Congress  had  authorized 
the  holding  of  a  government  lottery  in  the  Dis- 
trict of  Columbia  and  there  was  a  loud  demand 
for  reform.  Some  attempt  had  been  made  by 
Congress  to  keep  the  tickets  and  literature  of 
"illegal  lotteries"  out  of  the  mails  but  the  legisla- 
tion had  not  been  effective  because  the  express  as 
a  means  of  transportation  was  still  available,  and 
because  the  lottery  companies,  in  order  to  escape 
all  interference,  established  themselves  in  con- 
tiguous .Central  American  territory.  Congress, 
therefore,  in  1890  passed  "an  act  for  the  suppres- 


70      FEDERAL  POWER:    ITS  GROWTH 

sion  of  the  lottery  traffic  through  national  and  in- 
terstate commerce  and  the  postal  service  subject  to 
the  jurisdiction  and  laws  of  the  United  States." 
The  law  not  only  prohibited  any  person  from 
bringing  into  the  United  States  or  depositing  in  the 
mails  any  lottery  ticket  or  lottery  advertisement 
but  forbade  these  things  from  being  carried  "from 
one  State  to  another."  This  was  a  novel  concep- 
tion of  the  extent  of  the  power  of  the  post  office 
and  was  the  first  law  which  seemed  to  bear  within 
its  provisions  the  germ  of  apparent  unconstitu- 
tional encroachment  upon  the  police  power  of  the 
States,  this  consideration  being  swept  aside  by  the 
doctrine  of  paramount  necessity.  "The  demand 
for  the  suppression  of  this  lottery  traffic  comes 
from  all  sections  of  the  country,"  said  Represen- 
tative Broderick,  in  charge  of  the  bill,  and  after 
adding  that  "this  lottery  business  has  grown  to 
such  an  extent  that  it  has  checked  the  moral  sense 
of  the  people  of  the  entire  country,"  he  had  no 
other  argument  to  offer.  None  was  needed.  If 
the  people  demanded  it,  it  must  be  done.  There 
was  no  serious  debate  upon  the  merits  of  the 
proposition  from  a  constitutional  point  of  view 
in  either  the  Senate  or  the  House  and  it  became  a 
law  by  a  practically  unanimous  vote. 


AND  NECESSITY  71 

But  what  the  people  wanted  and  what  the  Con- 
stitution gave  Congress  the  power  to  enact  were 
widely  different  matters  and  the  Supreme  Court 
was  called  upon  to  adjudicate  the  question.  The 
arrest  of  a  man  who  shipped  lottery  tickets  from 
Texas  to  California  was  contested  upon  the  ground 
that  the  regulation  of  lotteries  was  wholly  within 
the  jurisdiction  of  the  police  power  of  the  States. 
The  Supreme  Court  in  1903  overruled  this  conten- 
tion, deciding  that  lottery  tickets  were  subjects  of 
traffic  and  their  transportation  by  common  car- 
riers from  one  State  to  another  was  interstate  com- 
merce which  Congress  might  prohibit  under  its 
power  to  regulate  commerce  among  the  States. 
One  sentence  in  the  majority  decision  illustrates 
the  principle  which  has  been  uppermost  in  sustain- 
ing all  enlarged  grants  of  Federal  power.  "As  a 
State  may,  for  the  purpose  of  guarding  the  morals 
of  its  own  people,"  said  Justice  Harlan,  "forbid  all 
sales  of  lottery  tickets  within  its  limits,  so  Con- 
gress, for  the  purpose  of  guarding  the  people  of 
the  United  States  against  the  Widespread  pesti- 
lence of  lotteries'  and  to  protect  the  commerce 
which  concerns  all  the  States" — which  phrase 
seems  to  have  been  inserted  as  a  secondary  and 
saving  clause — "may  prohibit  the  carrying  of  lot- 


72      FEDERAL  POWER:    ITS  GROWTH 

tery  tickets  from  one  State  to  another."  This  idea 
of  paternally  safeguarding  the  morals  of  the  peo- 
ple through  legislation  which  stretched  the  Con- 
stitution to  its  utmost  limit — an  idea  which  per- 
meates present-day  Congressional  enactment, — did 
not,  however,  meet  with  the  approval  of  the  en- 
tire court.  As  a  matter  of  fact,  the  court  was 
almost  equally  divided,  five  in  the  affirmative  and 
four  in  the  negative.  Among  the  dissenters  was 
Chief  Justice  Fuller,  who  characterized  the  opin- 
ion of  the  court  as  "a  long  step  in  the  direction  of 
wiping  out  all  State  lines  and  the  creation  of  a 
centralized  government."  He  differentiated  be- 
tween the  moral  and  the  legal  aspect.  "It  will  not 
do  to  say,"  he  declared,  "that  State  laws  have 
been  found  to  be  ineffective  for  the  suppression  of 
lotteries,  and,  therefore,  Congress  should  inter- 
vene. The  scope  of  the  commerce  clause  of  the 
Constitution  cannot  be  enlarged  because  of  pres- 
ent views  of  public  interest." 

But  even  though  it  might  be  by  the  narrow  ma- 
jority of  one,  the  lottery  evil  was  blotted  out  by 
invoking  Federal  aid,  which  was  the  result  de- 
sired, and  the  people  did  not  care  how  close  was 
the  margin  of  strength  so  long  as  the  victory  was 
won.    It  was  but  natural,  therefore,  that  upon  the 


AND  NECESSITY  73 

next  occasion  of  public  necessity  the  strong  arm 
of  the  government  should  again  be  brought  into 
requisition.  In  the  year  1893  there  was  a  men- 
ace of  cholera  and  the  suggestion  of  a  national 
quarantine  met  with  instant  favor.  It  is  an  inter- 
esting fact  in  this  connection,  as  showing  how 
popular  sentiment  can  change  in  a  century,  that 
in_ J799  a  law  was  passed  by  Congress  directing  I 
FederaTcustom  revenue  officers  "to  duly  observe  J  (  . 
the  quarantine  laws  of  any  State  and  faithfully 
aid  in  their  execution,"  while  in  1898  Congress 
enacted  a  law  which  empowered  and  authorized 
State  quarantine  officers  "to  act  as  officers  of  the 
national  quarantine  system  and  shall  be  clothed 
with  all  the  powers  of  United  States  officers  for 
quarantine  purposes. "  Herein  was  a  complete 
reversal  of  the  relative  importance  of  State  and 
Federal  officers.  When  the  Federal  government 
was  given  full  control  of  the  quarantine  system  the 
law  went  so  far  as  to  authorize  the  Secretary  of 
the  Treasury,  in  the  event  that  the  quarantine 
regulations  of  any  State  or  municipality  were  not, 
in  his  opinion,  sufficient  to  prevent  the  introduction 
of  infectious  or  contagious  diseases  from  foreign 
countries,  to  promulgate  rules  and  regulations 
which  would  supersede  State  law.    This,  indeed, 


(J  a . 


74      FEDERAL  POWER:    ITS  GROWTH 

was  investing  a  Federal  official  with  extensive 
power,  but  in  this  case,  as  in  every  other,  the  plea 
of  necessity  was  successfully  raised.  The  majority 
report  in  the  House,  submitted  by  Representative 
Rayner,  a  Maryland  Democrat,  insisted  that  it 
was  "of  the  utmost  importance  that  something 
should  be  done,"  and  added: 

"Some  of  the  States — but  very  few  indeed — 
have  ample  and  efficient  quarantine  regulations, 
while  others  have  legislation  upon  the  subject 
which  is  utterly  impotent  for  the  purpose  for 
which  it  was  designed,  and  still  others  have  no 
statutes  or  provisions  upon  the  subject  at  all.  It 
is  idle  and  useless  to  say  that  this  is  a  matter 
that  ought  to  be  left  to  the  conflicting  laws  of 
the  different  States.  No  one  State  has  it  within 
its  power  to  protect  itself  from  the  importation 
of  an  epidemic." 

In  this  brief  paragraph,  written  little  more  than 
twenty  years  ago,  is  embodied  the  consideration 
which  has  had  such  a  controlling  influence  upon 
the  growth  of  Federal  power.  Some  States  have 
good  legislation,  others  poor  legislation,  and  still 
others  no  legislation  at  all.  This  is,  apparently, 
good  and  sufficient  reason  why  all  the  patchwork 
laws  of  the  States  should  be  superseded  by  a 
blanket  statute  enacted  by  the  Federal  Congress. 


AND  NECESSITY  75 

The  argument  is  appealing  and  effective,  even 
though,  as  when  the  quarantine  law  was  under  con- 
sideration, a  few  of  the  old-time  faith  utter  their 
protest.  There  was  something  novel,  at  least,  in 
the  doctrine  that  a  Federal  official  should  make 
laws  which  would  govern  the  States  and  that  he 
was  himself  to  be  the  judge  of  whether  a  State  or 
municipal  law  was  sufficient.  It  was  pointed  out 
that  it  might  be  possible  for  a  Federal  official  in 
Washington  to  frame  a  code  of  laws  which  would 
restrain  the  personal  liberty  of  a  citizen  of  New 
Jersey  returning  from  New  York,  even  though  his 
actions  would  be  wholly  legal  according  to  State 
law,  "and  irrespective  of  the  fact  that  he  is  in  no 
way  engaged  in  commerce."  The  bill  was  further 
criticized  as  "a  long  stride  in  the  direction  of  Fed- 
eral control  of  matters  hitherto  exclusively  within 
the  jurisdiction  of  the  State,"  while  the  minority 
report,  written  by  Mr.  Mallory,  of  Florida,  con- 
tained this  caustic  comment : 

"On  the  plea  of  necessity  the  House  of  Rep^ 
resentatives  is  asked  once  more  to  organize  a 
raid  upon  State  authority,  to  invade  the  sacred 
domain  of  personal  liberty,  to  wrest  from  the 
local  authorities  of  the  States  a  power  which  up 
to  this  time  has  been  exclusively  theirs,  and,  in 
order  to  effectually  secure  these  ends,  to  delegate 


76      FEDERAL  POWER:    ITS  GROWTH 

to  a  single  administrative  officer  its  high  legisla- 
tive functions." 

All  of  which  was  doubtless  true,  as  well  as  the 
further  comment  that  the  Secretary  of  the  Treas- 
ury was  made  a  Supreme  Court  to  decide  upon  the 
sufficiency  of  State  laws.  Protest  was  in  vain. 
Even  a  previous  opinion  of  the  United  States  Su- 
preme Court,  as  handed  down  by  Associate  Justice 
Davis,  to  the  effect  that  "the  power  to  establish 
quarantine  laws  rests  with  the  States  and  has  not 
been  surrendered  to  the  general  government,"  was 
disregarded.  A  few  stalwart  champions  of  State 
rights  stood  like  Leonidas  at  the  pass  of  Ther- 
mopylae, but  over  them  rode  rough-shod  a  large 
majority  of  the  people's  representatives.  All  their 
arguments  and  assertions  faded  away  before  the 
overwhelming  common-sense  of  the  counter-prop- 
osition that  uniformity  in  quarantine  service  and 
regulation  was  essential  to  public  safety  and  that 
this  conformity,  to  say  nothing  of  efficiency  and 
authority,  could  not  be  obtained  except  by  vesting 
complete  control  in  the  Federal  government.  It 
was  a  question  of  fact  against  theory  and  this  is  a 
practical  age.  The  solid  and  substantial  fact 
triumphed  over  a  thin  and  almost  obsolete  idea. 

The  doctrine  of  paramount  necessity  was  again 


AND  NECESSITY  77 

invoked  for  the  extension  of  Federal  authority  in 
the  protection  of  the  people  against  irnpure_fopd 
and  drugs,  a  matter  which  might  very  properly  be 
considered  as  wholly  within  the  jurisdiction  of  the 
States.  On  June  30,  1906,  an  act  was  approved 
which  made  it  a  serious  misdemeanor  to  ship  from 
one  State  to  another  any  misbranded  or  adulter- 
ated article  of  food  or  drugs.  The  standards  by 
which  these  articles  were  to  be  judged  were  to  be 
set  forth  in  rules  and  regulations  framed  by  three 
Federal  officials,  the  Secretary  of  the  Treasury, 
the  Secretary  of  Agriculture  and  the  Secretary  of 
Commerce  and  Labor.  The  act  gave  the  Bureau 
of  Chemistry  the  right  to  examine  specimens,  pro- 
vided for  the  confiscation  of  illegal  articles,  gave 
Federal  courts  jurisdiction  over  prosecutions  and 
went  into  much  detail  as  to  the  manner  in  which 
the  law  should  be  administered.  Long  before  this, 
in  1 89 1,  the  Senate  had  passed  a  bill  which  looked 
toward  securing  purity  of  food  and  drugs,  and  in 
1902  a  law  was  enacted  which  authorized  the  Sec- 
retary of  Agriculture  "to  establish  standards  of 
food  and  food  products  and  determine  what  are 
regarded  as  adulterations  therein  for  the  guidance 
of  the  officials  of  the  various  States  and  the  courts 
of  justice."    This  law  was  so  palpably  within  the 


w 


78      FEDERAL  POWER:    ITS  GROWTH 

domain  of  Congress  as  to  excite  no  comment. 
Under  it  certain  standards  were  duly  proclaimed 
and  some  of  the  States  passed  laws  in  conformity 
therewith.  It  did  not,  however,  prevent  fraud 
from  being  practiced  upon  the  people  and  the  ad- 
vocates of  governmental  control  saw  another  op- 
portunity to  extend  Federal  authority.  The  pres- 
ent law  was  then  prepared  and  introduced  in  Con- 
gress. The  report  which  accompanied  the  bill  in 
the  Senate  was  brief  and  perfunctory,  embracing 
only  two  sentences,  with  neither  reason  nor  argu- 
ment for  the  proposed  legislation.  In  the  House 
the  majority  report  brought  forward  the  familiar 
plea.  "We  believe, "  it  asserted,  "that  every  one 
recognizes  the  necessity  of  governmental  regula- 
tion to  prevent  the  sale  of  adulterated,  poisonous 
or  other  injurious  food  products."  The  statement 
was  frankly  made  that  the  object  of  the  proposed 
law  "is  to  obtain  uniformity  of  food  standards 
among  the  States,"  and  then  the  report,  again  em- 
phasizing the  word  "necessity,"  continued: 

"The  necessity  for  pure  food  laws  is  apparent 
to  every  one.  Many  of  the  States  have  endeav- 
ored to  meet  this  necessity  as  far  as  they  can,  but 
the  several  States  have  proven  unable  to  fully 
deal  with  the  matter  when  affected  by  interstate 


AND  NECESSITY  79 

commerce  in  adulterated  and  misbranded  arti- 
cles. .  .  .  The  laws  and  regulations  of  the  differ- 
ent States  are  divers,  confusing  and  often  contra- 
dictory.1 ' 

Very  able  and  comprehensive — but  also  very  in- 
effective— were  the  arguments  in  opposition  to  the 
measure.  It  was  contended  that  "the  power  of 
government  to  regulate  the  sale  of  food  products 
and  drugs,  prohibit  adulteration  of  the  same,  pre- 
scribe the  manner  in  which  they  shall  be  branded 
and  fix  the  size  and  weight  of  the  packages  in 
which  such  food  products  and  drugs  shall  be  con- 
tained, is  admittedly  an  exercise  of  police  power," 
and,  therefore,  not  within  the  jurisdiction  of  Con- 
gress. The  belief  was  expressed  that  the  legisla- 
tures of  the  several  States  had  full  power  and 
authority  to  enact  such  laws  and  protect  the  people 
of  the  States.  It  was  further  claimed  that  the 
States  had  enacted  these  laws  and  were  enforcing 
them.  The  broad  principle  was  laid  down  that 
"the  power  to  protect  the  people  of  the  various 
States  in  health,  in  morals  and  general  welfare  is 
inherent  in  the  States — was  reserved  to  the  States 
by  the  Constitution,  was  not  delegated  to  the  Con- 
gress of  the  United  States,  and  remains  there  to 
be  exercised  by  the  States  at  the  will  and  pleasure 


80      FEDERAL  POWER:    ITS  GROWTH 

of  the  legislatures  of  such  States."  Emphasis  was 
laid  upon  the  decision  of  the  United  States  Su- 
preme Court  in  the  case  of  Plumley  vs.  Massachu- 
setts (115  U.  S.  461),  which  sustained  the  exclu- 
sive right  of  the  State  to  pass  and  enforce  laws  for 
the  protection  of  the  health  and  morals  of  its 
people  and  to  prevent  the  sale  of  articles  of  food 
manufactured  in  or  brought  from  another  State. 
Finally,  the  right  of  Congress  to  enact  the  pro- 
posed legislation  was  challenged  and  Congress  was 
urged  "to  leave  to  the  legislatures  of  the  various 
States  the  duty  of  protecting  the  people  of  the 
States." 

Both  challenge  and  appeal  were  in  vain.  As 
against  grave  questions  of  constitutionality  came 
this  pathetic  plea — literally  the  last  words  spoken 
in  the  debate : 

"I  trust  no  member  of  this  House  will  so  far 
forget  the  good  of  his  constituents  as  to  vote 
against  this  bill." 

In  response  to  this  all-persuasive  argument  the 
House  passed  the  measure  by  a  vote  of  243  to  17. 
The  vote  in  the  Senate  was  63  to  4.  Thus  was 
the  Pure  Food  Law  enacted — a  law  which  has  im- 
measurably stimulated  the  idea  of  the  supremacy 


AND  NECESSITY  81 

of  the  Federal  government.  Section  9  of  the  stat- 
ute releases  from  the  danger  of  prosecution  any 
retail  dealer  who  has  the  guarantee  of  a  manu- 
facturer, wholesaler  or  jobber  that  the  articles  fur- 
nished him  are  not  misbranded  or  adulterated. 
The  consequence  is  that  nearly  every  manufac- 
tured article  of  food  which  now  enters  the  house- 
hold bears  the  magic  legend,  "Guaranteed  under 
U.  S.  Pure  Food  Law,"  while  the  advertisements 
in  newspapers  and  street  cars  assure  the  would-be 
purchaser  that  pickles  and  shrimps  and  catsup  and 
herring  bear  the  seal  of  Federal  approval.  No 
one  can  estimate  the  psychological  effect  which  this 
constant  reiteration  has  upon  the  public  mind.  It 
has  accustomed  millions  of  people  to  regard  the 
Federal  government  as  the  personal  protector  of 
their  welfare  and  has  led  them  to  invite  further 
exercise  of  Federal  power. 


82      FEDERAL  POWER:    ITS  GROWTH 


Chapter  VI 

FEDERAL  CONTROL  OVER  RAILROADS 
AND  TRUSTS 

THE  old  proverb  that  fire  is  a  good  servant 
but  a  bad  master  became,  as  the  country 
developed,  particularly  applicable  to  the  railroads. 
The  transportation  lines  had  knit  together  the 
widely  separated  sections  of  the  United  States  and, 
with  the  telegraph,  had  inspired  the  American 
people  with  a  sense  of  unity.  They  were,  in  them- 
selves, the  very  essence  of  the  spirit  of  Federalism. 
They  made  the  boundaries  of  the  States  of  no 
importance.  Under  conditions  of  speed  and  com- 
fort the  traveler  from  the  east  to  the  west  or 
from  the  north  to  the  south  paid  no  heed  to  the 
States  traversed  during  his  journey.  It  was  the 
United  States  as  one  vast  and  solidified  country 
which  impressed  itself  upon  his  mind  and  this  be- 
came especially  true  when  the  trans-continental 
roads  linked  the  Atlantic  and  Pacific  coasts  with 
bands  of  steel.    As  the  country  grew,  however,  the 


AND  NECESSITY  83 

railroads  waxed  in  power.  The  corporations 
which  owned  them  fondly  imagined  that  they  were 
beyond  control  and  indulged  in  practices  which 
were  manifestly  injurious  to  those  who  did  not 
possess  the  influence  to  compel  fair  treatment. 
When  this  condition  arose  some  of  the  States  at- 
tempted remedial  measures,  either  through  the 
creation  of  railroad  commissions  or  the  enactment 
of  laws  which  could  only  be  effective  within  State 
boundaries.  The  so-called  Granger  movement  in 
the  middle  west  in  the  early  8o's  was  an  expres-  "  ' 
sion  of  resentment  against  railroad  domination; 
but  the  reforms  which  this  popular  uprising  suc- 
ceeded in  accomplishing  were  necessarily  re- 
stricted. It  was  evident  that  this  new  menace  to 
the  public  welfare  could  not  be  held  in  restraint 
except  through  the  exercise  of  Federal  power,  nor  J 
was  there  any  method  whereby  this  authority  could 
be  brought  into  play  except  through  the  enactment 
of  a  Federal  law. 

Congress  approached  the  subject  with  mucK 
care  and  deliberation.  There  was  no  doubt  as  to 
the  necessity  for  action.  Complaints  against  the 
railroads  were  numerous,  beginning  with  the  as- 
sertion that  local  rates  were  unreasonably  high, 
as  compared  with  through  rates,  and  ending  with 


84      FEDERAL  POWER:    ITS  GROWTH 

charges  of  wasteful  and  extravagant  management, 
with  the  consequent  imposition  of  a  needless  tax 
upon  the  shipping  and  traveling  public.  The  para- 
mount evil  was  the  unjust  discrimination  between 
persons  and  places  in  the  matter  of  freight  and 
passenger  tolls.  While  there  was  no  question  as 
to  the  prevalence  of  unsatisfactory  conditions, 
there  was  much  hesitation  as  to  the  methods  by 
which  they  were  to  be  remedied  and  still  more 
uncertainty  as  to  the  extent  of  the  authority  which 
Congress  might  exercise  in  the  premises.  Many 
months  were  spent  in  inquiry,  the  result  being  a 
recommendation  that  a  commission  be  created 
which  should  be  invested  with  Federal  control  of 
all  the  railroads  in  the  United  States.  This  was 
thirty  years  ago,  at  which  time  it  was  necessary 
to  argue  at  considerable  length  in  favor  of  the 
now  universally  conceded  principle  that  the  regu- 
lation of  interstate  commerce,  even  to  the  extent 
of  fixing  rates  and  traffic  schedules,  is  a  Federal 
function.  At  that  time,  too,  there  were  railroad 
commissions  in  some  twenty  States  which  were 
struggling  with  the  problem  of  railroad  regula- 
tion, but  investigation  proved  that  their  duties 
were  mainly  advisory  and  their  recommendations 
generally  ineffective.     This  made  some  plan  of 


AND  NECESSITY  85 

Federal  control  absolutely  necessary.  It  was  for- 
mulated none  too  soon.  Thirty  years  ago  there 
were  only  121,000  miles  of  railroad  in  the  United 
States,  which  had  been  constructed  at  a  gross  cost 
of  $5,000,000,000.  To-day  there  are  264,378 
miles  of  railroad,  with  nearly  2,500  separate  cor- 
porations representing  a  capitalization  of  over 
$21,000,000,000  and  employing  1,409,000  peo- 
ple. The  enormous  power  wielded  by  this  aggre- 
grate  of  wealth  could  not  have  been  controlled  by 
the  diverse  legislation  of  individual  States.  Noth- 
ing less  than  a  compact  law,  enforced  by  the 
strength  of  the  Federal  government,  could  have 
held  it  in  restraint. 

Since  the  first  Interstate  Commerce  Commis- 
sion law  was  passed  in  1887  it  has  been  frequently 
amended;  but  each  addition  has  increased,  instead 
of  decreased,  the  power  conferred  upon  the 
agents  of  the  Federal  government.  More  than 
once  the  argument  has  been  made  that  the  con- 
stitutional authority  given  to  Congress  to  regulate 
commerce  among  the  States  could  not  be  delegated 
to  a  commission,  and  that  regulations  promulgated 
by  such  a  commission  could  not  take  the  place  of 
laws  enacted  by  Congress.  The  argument  has 
fallen  upon  deaf  ears.     It  was  evident  that  Con- 


86      FEDERAL  POWER:    ITS  GROWTH 

gress  could  not  give  time  to  the  consideration  of 
the  multitudinous  details  affecting  railroad  traffic, 
besides  which  the  danger  which  threatened  was 
so  imminent  that  there  was  no  patience  with  those 
who  would  split  hairs  over  a  technical  construc- 
tion of  the  Constitution.  The  report  of  the  Sen- 
ate committee,  upon  which  the  Interstate  Com- 
merce Commission  bill  was  based,  stated  truth- 
fully that  "no  general  question  of  governmental 
policy  occupies  at  this  time  so  prominent  a  place 
in  the  minds  of  the  people  as  that  of  controlling 
the  steady  growth  and  extending  influence  of  cor- 
porate power  and  of  regulating  its  relations  to 
the  public,  and  there  are  no  corporations,"  it  was 
added,  "so  directly  connected  with  the  public  as 
the  railroads."  Pooling  and  rebates  had  already 
grown  to  be  nation-wide  evils.  Each  railroad  cor- 
poration was  a  law  unto  itself  and  as  it  grew  in 
extent  and  wealth  and  influence,  it  became  more 
and  more  callous  as  to  the  public  welfare.  Expen- 
sive lobbies  were  maintained  in  each  State  capital 
to  thwart  antagonistic  legislation  or  advotate  sel- 
fish propositions.  Passes  were  distributed  freely 
as  an  insidious  form  of  influence,  and  there  was  no 
hesitation  in  the  use  of  still  more  objectionable 
methods  of  obtaining  requisite  votes. 


AND  NECESSITY  87 

To-day  the  railroad  corporations,  once  so 
haughty  and  independent,  bow  in  complete  submis- 
sion to  Federal  power,  first  exemplified  in  the  In- 
terstate Commerce  Commission  and  now  concen- 
trated in  the  Director  General  of  Railroads.  In 
the  early  days  of  Federal  supervision  a  few  State 
legislatures  attempted  to  preserve  a  semblance  of 
jurisdiction  by  fixing  the  maximum  rate  to  be 
charged  within  State  boundaries,  but  as  intrastate 
railroads  are  of  minor  importance,  the  legislation 
was  necessarily  limited  in  the  extent  of  its  appli- 
cation. Under  war  conditions  the  existence  of 
the  State  is  no  longer  considered.  Federal  control 
is  complete.  Even  before  the  government  took 
over  the  roads,  however,  the  Interstate  Commerce 
Commission  had  developed  into  one  of  the  most 
important  bureaus  of  the  Federal  system,  costing 
over  $1,000,000  annually  to  maintain.  The  prac- 
tically unlimited  jurisdiction  conferred  by  Con- 
gress upon  the  Commission  transferred  the  activi- 
ties of  railroad  officials  from  the  State  capitals  to 
the  national  capital,  but  reprehensible  methods 
were  no  longer  in  vogue.  There  was  a  vast  dif- 
ference between  dealing  with  widely  separated 
and  obscure  State  legislators  on  the  one  hand,  and, 
upon  the  other  hand,  with  Interstate  Commerce 


88      FEDERAL  POWER:    ITS  GROWTH 

Commissioners,  and,  at  present,  a  Director  Gen- 
eral of  Railroads,  appointed  by  the  President 
and  typifying  the  embodiment  of  Federal  power. 
These  officials  can  and  do  regulate  and  govern  the 
railroads,  not  only  in  reducing  or  increasing  rates 
within  vast  territory  embracing  many  States,  but  in 
important  matters  of  finance  and  administration. 
The  present  system  of  governmental  control  is,  as 
yet,  largely  experimental;  but  even  before  we  de- 
clared war  against  Germany,  the  American  people 
were  so  thoroughly  convinced  that  they  had  acted 
wisely  in  giving  the  Federal  Commission  plenary 
authority  that  when  the  Commerce  Court,  created 
for  the  purpose  of  reviewing  the  findings  and  or- 
ders of  the  Commission,  rendered  some  judgments 
nullifying  the  work  of  the  Commission,  the  de- 
mand for  the  abolition  of  the  Court  became  too 
insistent  for  Congress  to  withstand.  This  expres- 
sion of  confidence  in  the  Interstate  Commerce 
Commission  was  but  another  expression  of  popu- 
lar satisfaction  with  Federal  control.  The  result 
which  was  sought  for  has  been  achieved.  The 
subordination  of  the  railroad  corporations  to 
Federal  authority  is  now  a  finality;  and  if  the 
results  shall  be  advantageous — although  this  is  not 
yet   certain — the    minds    of   the    people   will   be 


AND  NECESSITY  89 

strengthened  in  the  belief  that  Federal  power  is 
a  beneficent  thing.  The  progress  of  the  years  is 
shown  by  the  fact  that  the  agency  which  did  so 
much  to  inculcate  the  Federal  spirit  by  the  prac- 
tical obliteration  of  State  boundaries  is  now 
brought  conclusively  under  Federal  control. 

Nor  was  railroad  domination  the  only  dan- 
ger with  which  the  legislatures  of  the  States  could 
not  successfully  cope.  The  great  commercial  de- 
velopment of  the  country  had  resulted  in  the  for- 
mation of  monopolistic  combinations,  popularly 
known  as  trusts.  Some  of  these  huge  corporations 
practically  controlled  the  entire  field  of  the  indus- 
try in  which  they  operated.  The  Standard  Oil 
Trust,  for  instance,  "manufactured  more  than 
three-fourths  of  all  the  petroleum  refined  in  the 
United  States,  marketed  more  than  four-fifths  of 
all  the  illuminating  oil  sold  in  the  United  States 
or  exported  from  the  United  States,  sold  more 
than  four-fifths  of  all  the  naphtha  sold  in  the 
United  States,  and  sold  more  than  nine-tenths  of 
all  the  lubricating  oil  purchased  by  railroad  com- 
panies in  the  United  States."  The  Sugar  Trust, 
the  Tobacco  Trust,  the  Harvester  Trust,  the  Steel 
Trust,  the  Copper  Trust, — all  these,  and  liter- 
ally hundreds  of  other  monopolies,  were  formed, 


90      FEDERAL  POWER:    ITS  GROWTH 

stifling  competition,  fixing  prices,  and,  in  too  many 
instances,  controlling  legislatures  in  opposition  to 
public  welfare.  It  was  evident,  long  before  all 
these  Trusts  had  been  organized,  that  the  Federal 
power  must  be  invoked  to  regulate  and  control 
them.  There  was  not  a  whisper  of  the  rights  of 
■  the  States,  therefore,  when  the  Sherman  Anti-trust 
bill  was  under  consideration  in  the  Senate  in  1890. 
The  situation  was  too  serious  to  be  further  jeop- 
ardized by  the  interposition  of  State  rights  doc- 
trine. On  the  contrary,  it  was  accepted  that  if 
the  proposed  law  made  illegal  "every  contract, 
combination  in  the  form  of  trust  or  otherwise,  or 
conspiracy  in  restraint  of  trade  or  commerce 
among  the  several  States,  or  with  foreign  nations," 
it  was  plainly  within  the  constitutional  preroga- 
tive of  Congress.  Senator  Sherman  sounded  the 
keynote  which  has  inspired  all  legislation  extend- 
ing Federal  power  when  he  said : 

"While  we  should  not  stretch  the  powers 
granted  to  Congress  by  strained  construction,  we 
cannot  surrender  any  of  them;  they  are  not  ours 
to  surrender;  but  whenever  occasion  calls,  we 
should  exercise  them  for  the  benefit  and  protec- 
tion of  the  people  of  the  United  States.  And 
while  I  have  no  doubt  that  every  word  of  this  bill 
is  within  the  powers  granted  to  Congress,  I  feel 


AND  NECESSITY  91 

that  its  defects  are  moderation,  and  that  its  best 
effect  will  be  a  warning  that  all  trade  and  com- 
merce, all  agreements  and  arrangements,  all 
struggles  for  money  or  property,  must  be  gov- 
erned by  the  universal  law  that  the  public  good 
must  be  the  test  of  all." 


"For  the  benefit  and  protection  of  the  people 
of  the  United  States,"  and  "the  universal  law  that 
the  public  good  must  be  the  test  of  all."  In  these 
two  pregnant  phrases  are  summed  up  the  Alpha 
and  Omega  of  the  persistent  and  unchecked  ex- 
tension of  Federal  power,  even  though  the  Con- 
stitution is  strained  thereby.  The  Senate  was,  in 
the  old  regime,  generally  supposed  to  be  the 
refuge  of  the  corporate  interests;  and  yet  when 
the  anti-trust  measure  came  to  a  vote  Senator 
Blodgett,  of  New  Jersey,  had  the  unenviable  dis- 
tinction of  being  the  only  Senator  recorded  in  the 
negative.  The  sentiment  of  the  Senate  was  ex- 
pressed most  forcibly  by  Mr.  Edmunds,  of  Ver- 
mont, Chairman  of  the  Judiciary  Committee,  when 
he  said  that  he  was  "in  favor,  most  earnestly  in 
favor,  of  doing  anything  that  the  Constitution  of 
the  United  States  has  given  Congress  the  power 
to  do,  to  repress,  and  break  up,  and  destroy  for- 
ever the   monopolies"    of  the   character   of  the 


92      FEDERAL  POWER:    ITS  GROWTH 

Sugar  Trust  and  the  Oil  Trust,  "because  in  the 
long  run,"  he  added,  "they  are  destructive  of  the 
public  welfare,  and  come  to  be  tyrannies,  grinding 
tyrannies."  With  these  views  uttered  in  the  Sen- 
ate, and  finding  their  endorsement  in  a  practically 
unanimous  vote,  it  was  no  wonder  that  the  House 
of  Representatives  speedily  and  affirmatively 
acted  and  thus  interposed  the  Federal  power  be- 
tween almost  omnipotent  monopolies  and  a  de- 
fenseless people.  It  is  true  that  it  has  required 
many  years  of  tedious  litigation  to  establish  the 
law.  The  corporations  did  not  surrender  their 
tremendous  advantage  without  a  struggle.  Event- 
ually, however,  the  Sugar  Trust,  the  Oil  Trust  and 
the  Tobacco  Trust  were  compelled  to  dissolve, 
while  other  combinations,  facing  the  inevitable, 
voluntarily  consented  to  take  the  action  which,  in 
due  course  of  time,  the  courts  would  have  directed. 
For  nearly  a  quarter  of  a  century  the  law  re- 
mained in  effect,  undergoing  constantly  broadening 
interpretation  in  the  courts.  It  was  evident,  how- 
ever, that  there  were  loopholes  which  had  not 
been  closed,  and  the  passage  of  the  so-called  Clay- 
ton Act,  approved  October  14,  19 14,  placed  fur- 
ther obstacles  in  the  way  of  creation  of  monopo- 
lies.     For  instance,  price   discrimination,    "tying 


AND  NECESSITY  93 

contracts,"  holding  companies  and  interlocking  di- 
rectorates— all  of  which  were  utilized  by  unscru- 
pulous corporations  to  substantially  lessen  compe- 
tition— were  prohibited  under  heavy  penalties. 
Even  this  drastic  law  did  not,  however,  meet 
every  situation  and  in  the  Federal  Trade  Com- 
mission Act  of  September  26,  19 14,  the  Federal 
government  was  given  power  to  deeply  probe  into 
the  conduct  of  business.  In  this  law  there 
is  recognition  of  the  fact  that  unfair  methods  of 
competition  prevail  in  the  commercial  world  and 
means  are  provided  for  remedying  the  evil.  Power 
to  execute  the  provisions  of  the  act  is  conferred 
upon  five  Commissioners  appointed  by  the  Presi- 
dent and  confirmed  by  the  Senate  and  the  author- 
ity is  of  the  broadest  character.  Action  may  be 
instituted  ''whenever  the  commission  shall  have 
reason  to  believe  that  any  such  person,  partner- 
ship or  corporation  has  been  or  is  using  any  unfair 
method  of  competition  in  commerce."  The  com- 
mission is  also  empowered  to  require,  by  general 
or  special  orders,  corporations  engaged  in  com- 
merce, excepting  banks  and  common  carriers  sub- 
ject to  the  act  to  regulate  commerce,  to  furnish  to 
the  commission  in  writing  such  information  re- 
specting .their    organization,    busiriess,    conduct, 


94      FEDERAL  POWER:    ITS  GROWTH 

practices  and  management  as  may  be  required. 
More  than  this,  the  commission  is  accorded  the 
legal  right  to  make  public  such  information,  ex- 
cept trade  secrets  and  names  of  customers,  if  such 
publication  is  deemed  expedient.  In  the  measure 
as  originally  drafted  it  was  gravely  proposed  that 
Federal  agents  should  at  all  times  have  the  right 
to  violate  the  privacy  of  any  corporation  doing 
an  interstate  business  to  the  extent  of  inspecting 
its  books  and  records  and  could  also  publish  the 
result  of  its  investigation.  In  the  law  as  finally 
enacted  this  provision  is  somewhat  restricted  in 
that  the  right  of  examination  is  limited  to  those 
corporations  which  are  being  investigated  or  have 
been  proceeded  against,  but  none  the  less  we  have 
now  reached  the  point  where  Federal  agents  can 
become  acquainted  with  the  innermost  details  of 
corporate  existence  and  can,  if  they  so  desire,  pub- 
lish their  knowledge  to  the  business  world.  No 
corporation  is  safe  from  Federal  investigation  be- 
cause there  is  no  manufacturing  or  other  industry 
worthy  of  the  name  whose  goods  do  not  pass  across 
State  lines. 

It  has  been  suggested  that  corporations  may 
find  protection  against  unprovoked  Federal  in- 
quisition in  the  security  which  is  guaranteed  by  the 


AND  NECESSITY  95 

Constitution  "against  unreasonable  searches  and 
seizures"  of  persons,  houses,  papers  and  effects. 
It  is  extremely  doubtful  whether  this  contention 
will  hold.  The  Supreme  Court  of  the  United 
States  is  not  likely  to  decide  that  an  examination 
conducted  for  the  public  good  into  the  affairs  of 
a  corporation  is  "unreasonable,"  even  though  no 
law  has  been  violated  by  the  corporation.  The 
fact  that  Congress  has  authorized  such  examina- 
tion, that  Federal  officers  are  executing  the  law  and 
that  the  burden  of  proving  innocence  rests  by  com- 
mon consent  upon  the  corporation,  renders  it  easy 
to  predict  that  this  particular  form  of  the  exer- 
cise of  Federal  power  will  not  be  modified  in  the 
slightest  degree. 

While  the  Federal  government  has  not  yet  at- 
tempted to  compel  the  settlement  of  disputes  be- 
tween common  carriers  engaged  in  interstate 
transportation  and  their  employees  engaged  in 
train  operation  or  train  service,  it  has  created  a 
Board  of  Mediation  and  Conciliation,  under  the 
act  of  July  15,  19 13,  to  settle  by  mediation,  con- 
ciliation and  arbitration  controversies  concerning 
wages,  hours  of  labor  or  conditions  of  employ- 
ment. Whenever  such  controversy  arises  and  in- 
terrupts or  threatens  to  interrupt  the  operation  of 


96      FEDERAL  POWER:    ITS  GROWTH 

trains  to  the  serious  detriment  of  the  public  inter- 
est, the  Board  of  Mediation  may  offer  its  services 
to  bring  about  an  agreement  or,  upon  the  request 
of  either  party,  is  required  to  use  its  best  efforts 
by  mediation  and  conciliation  to  the  same  end.  If 
an  amicable  adjustment  cannot  be  secured,  the 
Board  endeavors  to  induce  the  parties  to  submit 
their  dispute  to  arbitration,  and,  if  successful, 
makes  the  necessary  arrangements  for  such  arbi- 
tration. There  have  been  numerous  instances  of 
attempted  mediation  and  while  they  have  not  al- 
ways been  successful,  the  results  have  fully  war- 
ranted the  enactment  of  the  law.  All  that  is  now 
lacking,  in  the  view  of  the  advocates  of  absolute 
Federal  control,  is  compulsory  obedience  to  the 
mandates  of  the  Board  and  it  is  not  unlikely  that 
this  omission  will  be  supplied.  The  doctrine  of 
paramount  necessity  will  be  invoked  and  then  the 
Federal  power  will  again  protect  the  people 
against  the  undue  prolongation  of  disputes  which 
operate  against  the  public  interests. 


AND  NECESSITY  97 


Chapter  VII 

THE  FEDERAL  POWER  AND  THE  PEOPLE 

THE  extension  of  the  power  and  authority  of 
the  Federal  government  has  been  errone- 
ously characterized  as  Federal  usurpation.  The 
dictionary  definition  of  the  word  "usurpation"  is 
"the  act  of  seizing,  or  occupying  and  enjoying,  the 
place,  power,  functions  or  property  of  another 
without  right.',  This  is  not  the  situation  as  it 
exists  in  the  United  States  to-day.  Power  and 
functions  have  been  thrust  upon  executive  officers, 
the  visible  impersonations  of  the  Federal  govern- 
ment, by  the  representatives  of  the  people  in  Con- 
gress assembled.  Hamilton  very  properly  ob- 
served, in  the  "Federalist"  papers,  that  the  fabric 
of  the  American  empire  ought  to  rest  upon  the 
solid  basis  of  the  consent  of  the  people ;  and  if  the  ! 
people  consent  to  grant  large  powers  to  the  Fed- 
eral government,  those  powers  are  legitimate  and 
are  not  usurped. 

It  has  already  been  shown  that  much  of  the 


98      FEDERAL  POWER:    ITS  GROWTH 

Federal  legislation  enacted  by  Congress  was  based 
upon  the  doctrine  of  paramount  necessity.  This 
has  not  been,  however,  the  only  inspiring  cause. 
There  has  been  in  the  minds  of  the  people  an  in- 
stinct, selfish  though  it  might  be,  which  has  led 
them  to  gain  for  themselves  all  possible  advantage 
through  the  extension  of  governmental  functions. 
No  one  can  analyze  the  appropriations  made  by 
Congress  without  being  impressed  by  the  fact  that 
the  people,  through  their  representatives,  have 
insisted  upon  the  Federal  revenues  being  diverted 
into  channels  which  would  insure  the  greatest  good 
to  the  greatest  number.  Even  Thomas  Jefferson, 
stalwart  opponent  of  Federalism  as  he  was,  could 
not  resist  the  temptation  offered  by  a  surplus  in 
the  treasury  in  1806,  and  suggested  that  the  money 
be  applied  to  "the  great  purposes  of  public  educa- 
tion, roads,  rivers,  canals,  and  such  other  objects 
of  public  improvement  as  it  may  be  thought 
proper."  He  doubted,  however,  the  authority  of 
Congress  thus  to  dispose  of  the  Federal  funds  and 
recommended  an  appropriate  amendment  to  the 
Constitution.  President  Madison  also  called  the 
attention  of  Congress  to  uthe  great  importance  of 
establishing  throughout  our  country  the  roads  and 
canals  which  can  best  be  executed  under  National 


AND  NECESSITY  99 

authority,"  and  while  he  lauded  the  efforts  of  the 
States,  pointed  out  that  "National  jurisdiction  and 
National  means'*  would  be  more  effective.  He 
recognized,  as  Jefferson  did,  a  constitutional  defect 
against  carrying  his  program  into  effect,  and  later 
vetoed  a  bill  which  had  passed  Congress  to  use 
Federal  funds  for  internal  improvements,  holding 
that  the  power  to  regulate  commerce  did  not  in- 
clude the  power  to  construct  roads  and  canals,  nor 
improve  the  navigation  of  watercourses.  He  ex- 
pressed the  belief,  also,  "that  the  permanent  suc- 
cess of  the  Constitution  depends  upon  a  definite 
partition  of  powers  between  the  General  and  the 
State  Governments."  President  Monroe  vetoed 
in  1822,  upon  the  same  grounds,  "An  act  for  the 
preservation  and  repair  of  the  Cumberland 
Road";  in  1830  President  Jackson  vetoed  the 
Maysville  Turnpike  bill,  the  first  of  a  series  of 
vetoes  of  internal  improvement  bills;  and  as  late 
as  1847  President  Polk  vetoed  a  river  and  harbor 
bill.  The  men  in  Congress  who  shared  these  views 
introduced  amendments  to  the  Constitution  by 
which  they  sought  to  fairly  confer  upon  Congress 
the  power  which  seemed  to  be  a  matter  of  doubt. 
No  concerted  effort  was,  however,  put  forth 
toward  securing  the  adoption  of  these  proposed 


100    FEDERAL  POWER:    ITS  GROWTH 

amendments  and,  in  the  meantime,  the  door  of  the 
Federal  treasury  stood  invitingly  open.  The  de- 
sire to  benefit  from  the  expenditure  of  Federal 
funds  overcame  all  scruples.  A  popular  pressure 
which  could  not  be  withstood  finally  led  Congress 
to  embark  upon  a  policy  which,  up  to  the  present 
time,  has  resulted  in  the  expenditure  of  nearly 
$1,000,000,000  for  river  and  harbor  improve- 
ments alone.  It  has  not  been  unusual  for  appro- 
priation bills  of  this  character  to  aggregate  as 
much  as  $80,000,000  in  a  single  year  and  for 
the  enjoyment  of  participating  in  the  distribution 
of  this  vast  amount  of  Federal  wealth,  the  States 
eagerly  welcome  the  presence  of  Federal  agents 
within  their  boundaries  and  hasten  to  demonstrate 
the  navigability  of  streams  which  are  only  deep 
enough  to  float  barges  and  logs.  The  construc- 
tion of  public  buildings  has  been  another  favorite 
method  of  securing  the  expenditure  of  Federal 
funds  within  State  borders,  only  a  few  brave  and 
conscientious  spirits  questioning  the  honesty  of 
wholesale  raids  upon  the  National  Treasury. 
The  point  to  be  emphasized,  however,  is  that  the 
idea  of  legitimatizing  these  appropriations  by 
the  adoption  of  an  amendment  to  the  Constitution 
has  been  utterly  forgotten,  because  if  the  people's 


AND  NECESSITY  '..101 

representatives  decide  that  these  expenditures  are 
to  be  made,  who  shall  say  them  nay? 

A  well-filled  Federal  treasury  invites  a  multi- 
tude of  appropriations.  It  is  the  money  of  the 
people,  and  the  representatives  of  the  people  spend 
it  for  their  constituents.  Who  are  these  constitu- 
ents? The  rural  population  of  the  United  States, 
according  to  the  last  census,  was  over  48,000,000; 
of  whom  25,000,000  were  males,  while  the  urban 
was  only  42,000,000.  In  the  fact  that  a  ma- 
jority of  the  electorate  of  this  country  re- 
sides in  rural  districts  is  to  be  found  the  con- 
vincing reason  for  the  extension  of  governmental 
functions  in  behalf  of  the  agriculturist.  The 
golden  bait  of  getting  something  for  nothing  is 
dangled  before  the  eyes  of  the  farmers  by  vote- 
seeking  Congressmen  and  the  farmers,  in  turn, 
quite  willingly  forget  the  duties  which  the  State 
owes  to  its  citizens  as  they  share  in  the  benefits  of 
Federal  activities.  The  Department  of  Agricul- 
ture, which  is  the  executive  division  of  the  govern- 
ment most  intimately  connected  with  the  farm- 
ing class,  has  developed  with  hot-house  rapidity 
under  the  nurture  of  Federalistic  sentiment.  The 
figures  tell  the  story.  In  1 894,  the  division  of  bot- 
any in  the  Department  of  Agriculture  cost  $8,600 


102    FEDERAL  POWER:    ITS  GROWTH 

per  annum,  while  twenty  years  later  the  appro- 
priations for  the  Bureau  of  Plant  Industry  aggre- 
gated over  $2,000,000.  The  expenditures  of  the 
Bureau  of  Forestry  increased  during  the  same 
period  from  $7,280  to  considerably  in  excess  of 
$5,000,000.  The  Bureau  of  Chemistry  is  com- 
paratively a  new  creation,  but  this  does  not  pre- 
vent it  from  spending  over  $1,000,000  a  year, 
mainly  for  the  enforcement  of  the  pure  food  law. 
Meat  inspection,  a  responsibility  from  which  the 
States  have  been  relieved,  also  costs  $1,000,000 
annually.  Consideration  for  the  welfare  of  the 
people  is  undoubtedly  within  the  sphere  of  govern- 
ment, but  it  is  certain  that  the  founders  of  this 
republic  never  contemplated  the  degree  of  inti- 
mate regard  for  the  individual  which  is  now  ap- 
parent. The  vast  sums  expended  by  Federal 
agents  concern  every  detail  of  farm  life — not  only 
as  to  advising  the  farmer  as  to  the  care  of  his 
animals  and  plants,  including  ornamental  shrubs, 
and  an  inquiry  into  the  diseases  of  ginseng,  but 
how  to  bale  and  wrap  his  cotton,  cure  his  tobacco 
and  market  his  eggs.  We  have  certainly  reached 
a  remarkable  stage  in  our  national  existence  when 
a  Southern  Democrat  can  announce  upon  the  floor 
of  the   House,   with   apparent  satisfaction,   that 


AND  NECESSITY  103 

"five  hundred  and  thirty-five  hog  pastures  were 
built  in  Georgia  under  the  plan  of  the  Federal  De- 
partment of  Agriculture. " 

Another  striking  instance  of  bureaucratic 
growth  is  the  Bureau  of  Standards.  In  its  incep- 
tion, a  little  more  than  twenty  years  ago,  this  office 
consisted  of  an  adjuster,  a  mechanician,  a  mes- 
senger and  a  watchman.  To-day  this  Bureau  ex- 
pends nearly  one  million  dollars  per  annum,  is 
housed  in  costly  buildings  surrounded  by  exten- 
sive grounds,  and  its  duties  range  from  investigat- 
ing the  danger  to  life  and  property  due  to  the 
transmission  of  electric  currents  at  high  potentials, 
to  determining  the  fire-resisting  properties  of 
building  materials.  The  people,  through  Con- 
gress, have  granted  these  large  sums  and  author- 
ized these  unusual  governmental  duties  on  the  the- 
ory, apparently,  that  the  work  is  for  the  public 
welfare  and  cannot,  or  will  not,  be  undertaken  by 
the  States.  Certainly  no  other  reason  can  be  ad- 
vanced, for  instance,  for  taking  out  of  the  Fed- 
eral treasury  $400,000  in  a  single  year  for  the 
sole  purpose  of  eradicating  the  cattle  tick.  The 
most  notable  advance  in  recent  years,  however,  is 
in  the  rural  free  delivery  mail  service.  Nobody 
questions  the  fact  that  postal  matters  are  within 


104    FEDERAL  POWER:    ITS  GROWTH 

the  jurisdiction  of  the  Federal  government  but 
this  one  item  demonstrates  how  great  a  single 
branch  of  public  service  can  become.  In  the  post 
office  appropriation  bill  for  1894  appears  a  mod- 
est appropriation  of  $10,000  to  be  applied,  under 
the  direction  of  the  Postmaster  General,  to  experi- 
mental free  delivery  in  rural  communities  other 
than  towns  and  villages.  The  post  office  appro- 
priation bill  for  the  current  year  carries  for  this 
experiment  of  two  decades  ago  the  enormous  sum 
of  nearly  $55,000,000. 

So  enlarged  have  the  powers  and  duties  of  the 
Federal  government  become  that  the  Civil  Serv- 
ice Commission,  which  in  1894  consisted  of  three 
Commissioners  and  a  dozen  clerks,  is  now  a  most 
pretentious  Bureau,  requiring  several  hundred 
clerks  and  a  large  executive  staff  to  handle  the  ex- 
amination papers  of  the  army  of  government  em- 
ployees. The  field  force  of  the  Commission  alone 
to-day  costs  more  than  the  entire  expense  of  the 
organization  in  1894.  The  enforced  growth  of 
the  Federal  power  also  creates  a  constant  demand 
for  new  Departments.  Two  have  been  established 
in  recent  years,  the  latest  being  the  Department  of 
Labor,  while  a  Department  of  Health  is  being 
earnestly  advocated.    These  Departments  natural- 


AND  NECESSITY  105 

ly  increase  the  number  of  Bureaus.  In  the  Depart- 
ment of  Commerce,  a  comparatively  new  institu- 
tion, there  are  the  Bureau  of  Corporations,  the 
Bureau  of  Lighthouses,  the  Bureau  of  Foreign 
and  Domestic  Commerce,  the  Bureau  of  Fisheries, 
the  Bureau  of  Navigation,  the  Bureau  of  Mines 
and  several  others.  There  are  scores  upon  scores 
of  Bureaus  in  connection  with  the  eleven  Depart- 
ments of  the  Government,  and  Government  in- 
spectors or  officials  of  various  kinds  now  number 
thousands  where,  a  few  years  ago,  they  could  be 
counted  by  the  score.  In  view  of  this,  it  is  im- 
possible not  to  recall  the  fact  that  one  of  the  com- 
plaints against  King  George  III  in  the  Declara- 
tion of  Independence  was  in  these  words : 

"He  has  erected  a  multitude  of  new  offices,  and 
sent  thither  swarms  of  officers,  to  harass  our 
people  and  eat  out  our  substance." 

What  is  to  be  said  to-day,  when  a  multitude  of 
new  offices  is  being  erected  every  year  and  when 
swarms  of  officers  are  maintained  at  enormous 
cost  upon  the  public  treasury?  Of  course,  in  the 
days  of  our  forefathers,  the  objectionable  officers 
were  imposed  upon  the  people  by  a  monarch 
against  their  will.    To-day  the  offices  are  created 


106    FEDERAL  POWER:    ITS  GROWTH 

by  laws  enacted  by  the  representatives  of  the  peo- 
ple, the  latter  being  now  quite  willing  to  be  har- 
assed and  to  allow  their  substance  to  go  into  the 
pockets  of  Federal  officials. 

The  end  is  not  yet.  It  is  practically  certain, 
for  example,  that  within  the  next  ten  years  the 
Bureau  of  Education,  now  a  modest  attachment 
of  the  Department  of  the  Interior,  will  reach 
colossal  size.  There  is  in  Congress  a  growing 
belief  that  the  dispensing  of  education  in  wholesale 
fashion  is  a  governmental  duty,  without  regard  to 
the  efforts  put  forth,  or  the  facilities  provided  by, 
the  States.  It  is  true  that  the  House  of  Repre- 
sentatives, after  an  entire  day  spent  in  debate, 
declined  to  pass  a  measure  which  directed  the 
Commissioner  of  Education  to  investigate  illiter- 
acy among  the  adult  population  of  the  United 
States  and  report  upon  the  means  by  which  this 
illiteracy  might  be  reduced  or  eliminated;  but  de- 
feat was  only  made  possible  by  the  opposing  in- 
fluence of  the  all-powerful  chairman  of  the  Com- 
mittee on  Appropriations,  Mr.  Fitzgerald,  of 
New  York,  who  protested  against  "a  movement 
which,  if  continued  and  not  stopped,  means  an 
entire  change  in  our  system  of  government,  a 
practical  subordination  of  State  and  local  govern- 


AND  NECESSITY  107 

merits,  if  not  the  elimination  of  local  self-govern- 
ment in  this  country,  and  the  building  up  of  a 
great  Federalized  central  government,  which  I 
believe  is  the  greatest  menace  to  this  country." 
The  defeat  of  this  particular  measure  did  not 
dishearten  those  who,  despite  Mr.  Fitzgerald's 
warning,  would  indefinitely  extend  governmental 
activities.  On  February  23,  191 7,  the  Federal 
Board  of  Vocational  Education  was  established. 
The  law  approved  on  that  date  provided  for  ap- 
propriations eventually  aggregating  $6,000,000 
annually  "to  be  paid  to  the  respective  States  for 
the  purpose  of  cooperating  with  the  States  in  pay- 
ing the  salaries  of  teachers,  supervisors,  and  direc- 
tors of  agricultural  subjects,  and  teachers  of  trade, 
home  economics  and  industrial  subjects,  and  in  the 
preparation  of  teachers  of  agricultural,  trade,  in- 
dustrial and  home  economic  subjects."  It  is  fur- 
ther stipulated  that  any  State,  in  order  to  secure 
the  benefit  of  appropriations,  shall,  through  its  leg- 
islative authority,  accept  the  provisions  of  the  act 
and  designate  a  State  board  to  cooperate  with  the 
Federal  Board.  Upon  the  latter  is  imposed  the 
duty  "to  make  or  cause  to  have  made  studies,  in- 
vestigations, and  reports,  with  particular  reference 
to  their  use  in  aiding  the  States  in  the  establish- 


108    FEDERAL  POWER:    ITS  GROWTH 

ment  of  vocational  schools  and  classes  and  in  giv- 
ing instruction  in  agriculture,  trades  and  industries, 
commerce  and  commercial  pursuits,  and  home  eco- 
nomics. Such  studies,  investigations,  and  reports 
shall  include  agriculture  and  agricultural  processes 
and  requirements  upon  agricultural  workers; 
trades,  industries,  and  apprenticeships,  trade  and 
industrial  requirements  upon  industrial  workers, 
and  classification  of  industrial  processes  and  pur- 
suits; commerce  and  commercial  pursuits  and  re- 
quirements upon  commercial  workers;  home  man- 
agement, domestic  science,  and  the  study  of  related 
facts  and  principles;  and  problems  of  administra- 
tion of  vocational  schools  and  of  courses  of  study 
and  instruction  in  vocational  subjects." 

This  broadening  of  the  field  of  Federal  work 
would  seem  to  be  all-embracing,  but  it  is  only  the 
entering  wedge.  The  Commissioner  of  Educa- 
tion now  seriously  proposes  that  Congress  shall 
place  at  his  disposal  a  sum  eventually  aggregating 
$22,000,000  a  year  in  order  to  provide  physical 
education,  $20,000,000  to  be  used,  in  cooperation 
with  the  States,  in  paying  the  salaries  of  directors, 
supervisors  and  teachers  employed  in  the  work. 
The  scope  of  this  new  Federal  activity  is  fully  pre- 


AND  NECESSITY  109 

sented  in  Section  2  of  the  proposed  law  which  reads 
as  follows: 

"The  purpose  and  aim  of  physical  education  in 
the  meaning  of  this  Act  shall  be;  more  fully  and 
thoroughly  to  prepare  the  boys  and  girls  of  the 
nation  for  the  duties  and  responsibilities  of  citi- 
zenship through  the  development  of  bodily  vigor 
and  endurance,  muscular  strength  and  skill,  bodily 
and  mental  poise  and  such  desirable  moral  and  so- 
cial qualities  as  courage,  self-control,  self-subor- 
dination and  obedience  to  authority,  cooperation 
under  leadership,  and  disciplined  initiative; 
through  adequate  physical  examination  and  the 
correction  of  postural  and  other  remediable  de- 
fects; through  promotion  of  hygienic  school  and 
home  life;  and  through  scientific  sanitation  of 
school  buildings,  playgrounds  and  athletic  fields 
and  equipment  thereof." 

It  has  also  been  suggested  that  the  Federal  gov- 
ernment undertake  a  general  education  survey  of 
the  United  States  and  its  possessions,  although  the 
author  of  the  measure,  with  a  qualm  of  State 
right's  conscience,  is  willing  to  have  States  and  lo- 
calities bear  half  the  expense  when  they  cooper- 
ate with  the  Federal  Commissioner  of  Education. 
Many  other  educational  schemes  have  been  intro- 
duced in  Congress — the  establishment  of  an  ele- 
mentary   industrial    school    in    the    Appalachian 


110    FEDERAL  POWER:    ITS  GROWTH 

mountains  and  the  creation  of  educational  parental 
courts,  for  instance, — and  the  number  is  certain  to 
be  increased  in  the  near  future.  It  is  a  conserva- 
tive prediction  to  say  that  some  of  them  will  be 
enacted  into  laws.  If  the  Federal  government  can 
go  into  the  States  to  afford  aid  to  the  individual 
farmer ;  if  it  can  insure  the  purity  of  every  article 
of  food  manufactured  within  a  State  border;  if  it 
can  carry  our  parcels  and  take  care  of  our  surplus 
earnings,  it  can  certainly  undertake  universal  edu- 
cation. The  argument  of  the  greatest  good  to  the 
greatest  number,  regardless  of  Constitutional  lim- 
itations or  State  jurisdiction,  will  prevail  in  the  fu- 
ture as  it  has  in  the  past.  Very  extravagant  may 
seem  the  propositions  just  cited,  but  they  are  not 
more  so  than  actual  laws  and  appropriations  re- 
cently enacted,  and  the  scope  of  which,  ten  or 
twenty  years  ago,  would  have  been  regarded  as 
beyond  imagination. 

There  is  one  phase  of  Federal  power,  which, 
although  granted  by  the  people  through  their  rep- 
resentatives, is  still,  in  the  minds  of  many,  open 
to  serious  question.  This  is  the  reservation  for 
future  use  of  enormous  tracts  of  land  in  the  west- 
ern States.  The  law  which  empowers  the  Presi- 
dent to  set  apart  "public  lands  wholly  or  in  part 


AND  NECESSITY  111 

covered  with  undergrowth,  whether  of  commer- 
cial value  or  not,  as  public  reservations,"  was,  at 
first,  administered  in  restricted  fashion;  but,  dur- 
ing Roosevelt's  administration,  the  principle  of 
conservation  was  carried  by  him  to  such  a  degree 
that  Congress  passed  a  law  forbidding  further 
forest  reservations  to  be  made  in  Colorado,  Wy- 
oming, Idaho,  Montana,  Washington  or  Oregon, 
without  its  consent.  President  Roosevelt,  aware 
that  this  prohibition  would  pass  Congress,  circum- 
vented its  purpose  by  reserving  additional  areas 
aggregating  30,000,000  acres  during  the  ten  days 
intervening  after  the  Congressional  enactment  had 
been  presented  to  him  for  approval.  There  have 
now  been  withdrawn  192,000,000  acres  under 
the  Forest  Reserve  Act,  and  numerous  forest 
rangers  and  other  Federal  agents  now  appear  in 
the  western  country  and  compel  obedience  to  Fed- 
eral regulations.  Under  laws  enacted  by  the  rep- 
resentatives of  the  people  the  imposition  upon  the 
western  States  has  gone  much  further.  Various 
statutes,  which  need  not  be  recited  in  detail,  tax 
the  natural  resources  of  the  public  domain  through 
leases  of  grazing,  oil,  phosphate,  asphaltum,  coal 
and  mineral  lands  for  the  benefit  of  the  Federal 
treasury,  while  power  plants  are  made  to  pay  a 


112    FEDERAL  POWER:    ITS  GROWTH 

royalty  to  the  Federal  government  for  each  horse- 
power generated  by  falling  water.  In  Colorado 
no  less  than  15,000,000  acres  of  land  have  been 
set  aside  as  forest  reserves,  while  10,000,000 
acres  of  coal  land  have  been  withdrawn  from  en- 
try or  a  leasing  value  set  upon  them  so  high  as  to 
make  their  utilization  prohibitive.  This  vast 
territory  is  equal  to  the  area  covered  by  the  en- 
tire States  of  Massachusetts,  Connecticut,  New 
Hampshire  and  Rhode  Island.  In  Oregon  over 
16,000,000  acres  and  in  Washington  more  than 
10,000,000  acres  are  under  Federal  dominion, 
with  no  possibility  of  the  States  enjoying  the  bene- 
fit therefrom. 

The  attitude  of  these  States  is  naturally  one  of 
protest  against  alleged  injustice.  Their  citizens 
point  to  the  acts  which  enabled  them  to  form  a 
State  government  and  which  provided  that  "the 
State,  when  formed,  shall  be  admitted  into  the 
Union  upon  an  equal  footing  with  the  original 
States  in  all  respects  whatever,"  and  claim  a  vio- 
lation of  those  statutes  because  the  advantages 
possessed  by  the  original  States  have  been  denied 
to  them.  Not  only  has  the  growth  of  population 
been  greatly  retarded  by  making  settlement  diffi- 
cult and  restricting  the  area  for  home-builders  to 


AND  NECESSITY  113 

occupy,  but,  inasmuch  as  no  taxes  can  be  collected 
upon  lands  owned  by  the  United  States,  the  rev- 
enue, as  well  as  the  resources  of  the  States,  have 
been  seriously  impaired.  It  is  pointed  out,  for  in- 
stance, that  the  natural  resources  of  Pennsylvania 
are  not  taxed  by  the  Federal  government,  but  ac- 
crue to  the  benefit  of  the  State  and  its  citizens, 
whereas  in  the  western  States  they  are  a  source  of 
Federal  profit.  It  is  no  wonder  that  in  States 
where  the  Federal  government  exercises  so  much 
control  there  is  a  feeling  of  resentment,  or  that 
the  assertion  that  these  conditions  represent  a  de- 
gree of  interference  in  local  affairs  never  before 
attempted  in  this  country  finds  a  responsive  echo 
within  their  borders. 


114    FEDERAL  POWER:    ITS  GROWTH 


Chapter  VIII 

BROADENING  THE  FEDERAL  FIELD 

WHEN  experiments  had  become  experi- 
ences, the  area  of  Federal  control  broad- 
ened with  tremendous  rapidity.  A  flood  of  Fed- 
eral legislation  descended  upon  the  country,  sweep- 
ing everything  before  it.  With  breadth  and  im- 
petus the  flood  has  now  swept  over  the  interven- 
ing State  barriers  and  is  still  moving  onward  with 
irresistible  force. 

These  enactments  have  come  as  the  logical  out- 
come of  events.  The  public  mind  has  become 
completely  saturated  with  a  feeling  of  absolute 
faith  in  the  efficacy  of  Federal  power.  Proposi- 
tions that  a  few  years  ago  would  have  been  ridi- 
culed are  now  accepted  with  composure  and  even 
cordiality,  the  mastery  attained  over  railroad 
and  other  corporations  having  whetted  the  public 
appetite  for  further  conquests.  Naturally  there 
was  no  hesitation  when,  in  response  to  an  impera- 
tive demand,  the  suggestion  was  made  that  the 


AND  NECESSITY  115 

Federal  power  might  be  successfully  employed  in 
suppressing  the  traffic  in  women  for  immoral  pur- 
poses. The  so-called  White  Slave  Act  is  an  at- 
tempt on  the  part  of  the  Federal  government  to 
lessen  immorality  by  burdening  vice  with  condi- 
tions and  punishments  which  make  its  practice 
difficult.  The  statute  was  an  evolution.  As  long 
ago  as  1875  a  Federal  act  made  it  illegal  to  im- 
port women  for  immoral  purposes,  but  not  being 
wholly  effective,  another  law  was  passed  in  1907. 
As  this  contained  an  unconstitutional  provision,  it 
was  later  amended.  It  did  not  remedy  the  evil. 
There  was  still  a  traffic  in  women  which  neither 
Federal  nor  State  law  had  been  able  to  reach. 
Once  again,  therefore,  the  Federal  power  was 
called  into  requisition  and  by  an  ingenious  scheme 
the  reform  was  accomplished  under  the  compre- 
hensive authority  given  to  Congress  to  regulate 
commerce  among  the  several  States.  The  act,  as 
finally  approved,  forbids  the  transporting,  or  ob- 
taining transportation  for,  in  interstate  or  foreign 
commerce,  any  woman  or  girl  for  the  purpose  of 
prostitution  or  debauchery,  or  for  any  other  im- 
moral purpose;  and  the  Supreme  Court  has  al- 
ready decided  that  the  transportation  need  not  be 
in  or  by  an  interstate  carrier.    Persuading,  indue- 


116   FEDERAL  POWER:    ITS  GROWTH 

ing,  enticing  or  coercing  any  woman  or  girl  to  go 
from  one  State  to  another  for  acts  thus  made  ille- 
gal is  prohibited  under  heavy  penalties. 

The  law,  however,  goes  still  further.  It  em- 
braces intent  or  purpose  in  connection  with  trans- 
portation of  women  and  girls  for  immoral  pur- 
poses. This  section  of  the  law  was  severely 
criticized  as  bringing  a  purely  mental  operation 
under  the  domain  of  interstate  commerce;  and  it 
was  also  questioned  whether  conversation  could  be 
regarded  as  being  within  the  meaning  of  the  word 
"commerce"  in  the  Constitution.  On  the  other 
hand,  it  was  argued  that  if  the  transportation  of 
lottery  tickets  could  be  prohibited,  not  because 
pieces  of  paper  were  in  themselves  harmful,  but 
because  of  the  injurious  connection  between  them 
and  the  entire  scheme  of  the  lottery,  the  inter- 
state transportation  of  women  for  the  purposes 
of  immorality  could  also  be  made  illegal.  It  was 
shown,  too,  that  the  Supreme  Court  had  held  that 
solicitation  of  business  for  a  firm  outside  of  its  own 
State  was  a  part  of  interstate  commerce.  It  was 
not  the  arguments  as  to  the  constitutionality  of 
the  proposed  law,  however,  which  determined  its 
enactment.  It  was  the  fact  that  the  so-called 
White  Slave  traffic  "shocked  the  moral  sense  of 


AND  NECESSITY  117 

the  nation,"  and  the  people,  through  their  repre-l 
sentatives,  were  bent  upon  its  abolition,  even  if 
the  power  of  the  Federal  Government  had  to  be 
invoked  in  devious  ways.  The  fact  that  the 
United  States  Supreme  Court  has  upheld  the  law 
in  at  least  four  decisions  will  further  stimulate  the 
exercise  of  the  Federal  power  in  overcoming  the 
next  evil  which  arouses  nation-wide  condemna- 
tion. 

Not  only  do  men  and  women  crossing  State 
borders  pass  under  the  control  of  the  Federal 
Government,  but  even  the  birds  that  fly  through 
the  air  have  been  placed  in  the  same  category.  In 
a  law  approved  March  3,  19 13,  making  appro- 
priations for  the  Department  of  Agriculture,  is  a 
clause  which  declares  that  all  migratory  and  in- 
sectivorous birds  which  do  not  remain  perma- 
nently throughout  the  entire  year  in  any  State  or 
Territory,  "shall  hereafter  be  deemed  within  the 
custody  and  protection  of  the  Government  of  the 
United  States,  and  shall  not  be  destroyed  or  taken 
contrary  to  regulations  hereinafter  provided  for." 
These  regulations  are  to  be  promulgated  by  the 
Department  of  Agriculture,  and  fine  or  imprison- 
ment is  to  be  the  punishment  of  any  person  con- 
victed of  their  violation.    A  provision  in  the  law, 


118    FEDERAL  POWER:    ITS  GROWTH 

not  devoid  of  sarcastic  humor,  asserts  "that  noth- 
ing herein  contained  shall  be  deemed  ...  to  pre- 
vent the  States  and  Territories  from  enacting  laws 
and  regulations  to  promote  and  render  efficient 
the  regulations  of  the  Department  of  Agriculture 
provided  under  this  act."  In  other  words,  the 
moment  the  President  of  the  United  States  made 
this  statute  effective  by  affixing  his  signature  of 
approval,  that  moment  all  provisions  of  the  game 
laws  of  all  the  States  which  were  in  conflict  with 
a  series  of  regulations  framed  by  a  Federal  official 
at  Washington  were  wiped  out  of  existence.  So 
completely  has  the  Federal  authority  supplanted 
the  authority  of  the  States  in  this  particular  that 
recently,  when  citizens  and  land-owners  in  South 
Carolina  desired  to  shoot  ducks  in  that  State  dur- 
ing a  certain  month,  they  were  compelled  to  confer 
with  the  Chief  of  the  Biological  Survey  in  Wash- 
ington, an  appointed  official  paid  a  salary  of 
$3,500  a  year,  in  order  to  obtain  the  necessary 
permission,  even  though  the  season  in  which  they 
desired  to  indulge  in  the  sport  was  legal  accord- 
ing to  their  State  laws. 

Two  reasons  seem  to  have  actuated  the  repre- 
sentatives of  the  people  in  Congress  in  this  com- 
plete surrender  of  State  sovereignty — first,  that 


AND  NECESSITY  119 

unless  birds  are  safe-guarded  the  injury  done  by- 
insects  will  increase  and  that  this  protection  could 
not  be  accorded  except  by  the  Federal  Government 
owing  to  "the  multiplicity  of  State  laws  and  the 
divergence  of  their  provisions."  The  profundity 
of  the  argument  brought  to  bear  upon  the  Senate 
is  shown  in  the  favorable  report  made  to  that 
body  upon  the  bill.  "But  for  the  vegetation  the 
insects  would  perish,"  it  says,  "and  but  for  the  in- 
sects the  birds  would  perish,  and  but  for  the  birds 
the  vegetation  would  be  utterly  destroyed."  Thus 
were  rhythm  and  logic  happily  combined;  while  it 
was  also  soberly  quoted  in  the  debate,  as  another 
reason  for  a  Federal  law,  that  although  Texas 
makes  the  killing  of  a  robin  an  offense  punishable 
by  a  fine  of  $5,  the  law  is  not  enforced  by  the  State, 
wherefore  the  heavy  hand  of  Federal  authority 
must  be  laid  not  only  upon  Texas  but  upon  every 
other  State  in  the  Union.  As  against  such  argu- 
ments as  these,  the  serious  presentation  of  State 
jurisdiction  under  the  Constitution  was  naturally 
unavailing.  In  vain  was  it  urged  that  the  black- 
bird or  the  goose  that  wings  its  flight  across  the 
blue  vault  of  heaven  has  neither  consignor  nor 
consignee,  and  is  not,  therefore,  interstate  com- 
merce; or  that  the  Federal  Government  has  no 


120    FEDERAL  POWER:    ITS  GROWTH 

police  power  in  the  States  for  the  protection  of  its 
property  not  on  Federal  ground;  or  that  it  was 
preposterous  to  suppose  that  a  barefoot  boy  could 
be  arrested,  taken  before  a  Federal  judge,  and 
fined  or  imprisoned  for  an  act  which  was  not  in 
violation  of  any  local  statute.  Judicial  determina- 
tion of  the  Constitutionality  of  this  act  is  now 
pending  in  the  United  States  Supreme  Court  in 
the  case  of  the  United  States,  plaintiff  in  error, 
vs.  Harvey  C.  Shauver ;  but,  in  the  meantime,  Con- 
gress has  re-affirmed  the  law  and  has  made  it 
operative  by  granting  to  the  Federal  Government 
a  generous  appropriation  for  its  enforcement.  It 
is  not  surprising  that  an  effort  is  now  being  made 
to  place  migratory  fishes  under  Federal  control, 
so  that  even  the  Mississippi  catfish  may  erelong 
swim  proudly  under  government  protection. 

Another  striking  and  most  unusual  instance  of 
the  exercise  of  Federal  power  was  presented  in  the 
Congressional  investigations  of  purely  local  strike 
conditions  in  West  Virginia,  Michigan  and  Colo- 
rado. It  will  be  remembered  that  President 
Cleveland  directed  United  States  troops  to  be  em- 
ployed in  an  effort,  during  the  strike  of  railroad 
employees  in  Chicago,  to  insure  the  safe  and  un- 
interrupted transit  of  the  United  States  mail,  the 


AND  NECESSITY  121 

local  authorities  being  apparently  unable  to  cope 
with  the  situation.  There  was  justification  for 
Mr.  Cleveland's  action.  The  conditions  in  Paint 
Creek,  W.  Va.,  in  the  spring  of  19 13  were  by  no 
means  analogous.  There  was  trouble  between  the 
coal  miners  and  the  mine  owners,  but  no  Federal 
function  suffered  violation  or  interference.  How- 
ever, in  order  to  find  an  excuse  for  conducting  a 
Federal  inquiry  into  a  State  condition,  the  Sen- 
ate Committee  on  Education  and  Labor  was  sol- 
emnly directed  to  proceed  to  Paint  Creek  and  dis- 
cover "whether  or  not  postal  services  have  been 
or  are  being  interfered  with  or  obstructed  in  said 
coal  fields";  and  "whether  or  not  the  immigration 
laws  of  this  country  have  been  or  are  being  vio- 
lated, and  whether  there  were  any  agreements  or 
combinations  entered  into  contrary  to  the  laws  of 
the  United  States;  and,  finally,  if  any  or  all  of 
these  conditions  exist,  to  investigate  and  report 
upon  the  causes  leading  to  such  conditions."  Alto- 
gether unavailing  was  the  assertion  of  the  Sen- 
ators from  West  Virginia  that  the  State  authorities 
were  competently  handling  the  situation.  Equally 
futile  was  the  charge  that  the  resolution  of  author- 
ization offered  only  a  thinly-clad  excuse  for  an 
unwarranted  Federal  interference.     The  resolu- 


122    FEDERAL  POWER:    ITS  GROWTH 

tion  was  adopted  and  the  Federal  committee 
started  upon  its  mission  of  inquiry.  Its  report  was 
not  submitted  for  a  year.  In  the  meantime,  the 
strike  had  been  settled;  but  the  upholders  of  the 
doctrine  of  Federal  control  cited  the  presence  of 
the  Federal  committee  in  the  strike  region  as  a 
powerful  factor  in  restoring  peace  and  order. 

The  basis  of  the  inquiry  into  the  strike  situa- 
tions in  the  copper  district  of  Michigan  and  the 
coal  fields  of  Colorado  was  identical  with  that  set 
forth  in  the  Paint  Creek  resolution ;  and  the  House 
of  Representatives  having  ordered  the  investiga- 
tions, the  Congressional  Committees  visited  the  re- 
spective localities,  not  hesitating  to  summon  local 
and  State  officials  and  question  them  as  to  the  rea- 
son for  the  existing  conditions.  As  a  result  of  the 
inquiry,  the  request  has  been  made  that  strike- 
breakers be  barred  from  going  from  one  State  to 
another,  which  is  a  new  application  of  the  author- 
ity to  regulate  commerce.  There  may  be  some 
question  as  to  the  propriety  of  Federal  invasion  of 
State  territory  when  there  is  not  even  prima  facie 
evidence  that  any  detail  of  Federal  administration 
is  involved;  but  there  is  no  disputing  the  fact  that 
the  invaders  went  armed  with  a  mandate  from  all 
the  people,  issued  through  their  representatives. 


AND  NECESSITY  123 

It  must  be  admitted,  therefore,  that  the  Federal 
investigators  neither  violated  nor  usurped  power. 
They  acted  in  accordance  with  law,  enacted  by 
those  to  whom  the  authority  to  make  laws  had 
been  duly  delegated  by  the  people. 

The  fight  over  the  so-called  Child  Labor  Law 
was  lengthy  and  bitterly  contested.  The  opposi- 
tion to  its  enactment  came  mainly  from  the  South- 
ern States,  for  two  reasons — first,  because  it  is  in 
the  South  that  the  doctrine  of  States'  rights  is 
finding  its  last  citadel,  and,  second,  because  in  tha 
section  child  labor  is  very  largely  used.  The  doc- 
trine of  paramount  necessity,  however,  again  pre- 
vailed and  the  measure  became  a  law.  In  this 
case,  as  in  many  others,  the  desired  result  was  at- 
tempted to  be  accomplished  through  indirection. 
It  was  manifestly  futile  to  enact  a  law  which  should 
directly  supplant  the  legislation  of  a  State,  but  it 
was  apparently  possible  to  forbid  the  interstate 
shipment  of  any  product  of  a  mine  or  quarry  upon 
which  a  child  under  sixteen  years  of  age  had  la- 
bored or  the  product  of  any  mill,  cannery,  work- 
shop, factory  or  manufacturing  establishment 
whereon  children  under  the  age  of  fourteen  years, 
or  children  between  the  ages  of  fourteen  and  six- 
teen years,  had  labored,  except  that  in  the  latter 


124    FEDERAL  POWER:    ITS  GROWTH 

case  employment  during  eight  hours  between  six 
o'clock  a.  m.,  and  seven  o'clock  p.  m.,  was  per- 
mitted. This  prohibition  accomplished,  of  course, 
the  reform  so  imperatively  demanded  by  existing 
conditions;  and  although  the  Supreme  Court  of 
the  United  States,  by  the  narrow  majority  of  five 
to  four,  has  declared  the  law  unconstitutional, 
there  is  no  doubt  that  Congress  will  amend  the 
act  so  as  to  overcome  this  adverse  decision.  The 
reasons  which  have  compelled  the  enactment  of 
beneficent  and  humane  Federal  laws  obtain  with 
especial  force  in  the  matter  of  child  labor  and 
eventually  the  proposed  and  necessary  reform  will 
be  secured. 

Another  wide  application  of  Federal  power  is 
embodied  in  the  Federal  Farm  Loan  Act,  which 
was  approved  July  17,  19 16.  This  law  was  in- 
spired by  the  fact  that  while  bank  loans  could  be 
obtained  upon  stocks  and  bonds  of  approved  se- 
curity, the  farmer  was  financially  handicapped  be- 
cause he  owned  nothing  but  his  land.  It  is  not 
necessary  here  to  review  the  four  years  of  agita- 
tion which  preceded  the  enactment  of  the  law  nor 
to  rehearse  the  obvious  arguments  which  were 
advanced  by  those  who  favored  the  legislation. 
Suffice  it  to  say  that,  it  being  apparently  taken  for 


AND  NECESSITY  125 

granted  that  the  States  have  neither  the  desire 
nor  the  ability  to  provide  for  the  financial  needs  of 
the  farmers  within  their  borders,  there  is  now  a 
Federal  Farm  Loan  Board,  consisting  of  five  mem- 
bers, including  the  Secretary  of  the  Treasury,  who 
is  chairman  ex-officio.  This  Board  has  divided 
the  United  States  into  twelve  districts  and  has  es- 
tablished Federal  land  banks,  each  with  a  sub- 
scribed capital  of  not  less  than  $750,000.  Na- 
tional farm  loan  associations  have  also  been  or- 
ganized under  the  provisions  of  the  act,  and,  in 
fact,  thousands  of  needy  farmers  have  already 
been  accommodated  with  funds.  In  view  of  the 
certainty  that  the  operations  of  these  Federal 
banks  will  extend  into  every  community  it  is  quite 
evident  that  the  country  will  now  witness  in  wide- 
spread fashion  another  demonstration  of  the 
beneficence  of  Federal  power  when  exercised  for 
the  general  good.  It  is  really  not  a  far  cry  from 
these  Federal  farm  loan  banks  to  the  governmental 
pawnshops  maintained  for  the  poor  by  France  and 
Mexico.  If  for  the  stockholder  and  bondholder 
the  government  can  provide  a  method  of  borrow- 
ing, and  if  the  same  advantage  can  be  accorded 
the  owner  of  land,  there  is  no  reason  why  equal 
consideration  should  not  be  given  to  the  citizen 


126    FEDERAL  POWER:    ITS  GROWTH 

who  can  only  pledge  his  personal  effects.     The 
whole  transaction  is  merely  one  of  degree. 

The  bold  stroke  by  which  Congress  established 
eight  hours  as  a  day's  work  on  every  railroad  in 
the  United  States,  except  those  less  than  ioo 
miles  in  length  or  street  or  interurban  roads  oper- 
ated by  electricity,  is  another  extension  of  Fed- 
eral power  not  to  be  lightly  considered.  The  im- 
portance of  the  enactment  is  not  alone  in  the  fact 
that  Congress  can,  almost  over-night,  effect  an 
industrial  revolution,  but  in  its  demonstration  that 
we  too  often  do  our  national  thinking  in  terms  of 
politics — a  lesson  which  is  serious  enough  if  we 
are  to  continue  moving  forward  along  present 
lines.  The  demand  of  the  2,000,000  employees, 
known  in  railroad  circles  as  the  Four  Brother- 
hoods, for  the  legal  establishment  of  an  eight- 
hour  day,  was  coupled  with  the  threat  of  a  nation- 
wide strike  and  that,  too,  with  a  presidential  elec- 
tion only  sixty  days  distant.  It  was  manifestly 
fatal  for  the  Administration  in  power,  from  a  po- 
litical point  of  view,  either  for  the  strike  to  occur 
or  for  the  Brotherhoods  to  fail  in  their  desire. 
Consequently  the  law  was  hastily  framed  and 
passed  with  equal  precipitancy,  being  approved  by 
the  President  on  September  3,  19 16.    The  oft-re- 


AND  NECESSITY  127 

peated  experiment  of  utilizing  interstate  com- 
merce as  the  agency  to  make  the  law  effective  was 
resorted  to,  as  it  can  be  at  any  time  in  the  future 
when  the  organized  employees  of  the  railroads 
decide  to  formulate  additional  demands,  especial- 
ly as  the  Supreme  Court  of  the  United  States  has 
decided  that  in  the  Constitutional  right  to  "regu- 
late commerce"  is  embraced  the  authority  to 
specify  hours  of  labor.  Nor  is  it  necessary  to 
confine  the  outlook  to  railroad  employees  alone. 
Any  class  of  men,  sufficiently  numerous  and  well- 
organized,  can  secure  the  same  result.  If  a  dema- 
gogue should  reach  the  White  House  and  truckle 
for  votes  in  order  to  secure  his  reelection,  and  if 
a  Congress  of  cowardly  politicians  should  appear 
equally  desirous  of  catering  to  those  upon  whom 
their  retention  in  office  largely  depends,  we  might 
easily  be  confronted  with  a  menacing  situation. 

The  path  which  has  been  opened  by  the  passage 
of  the  eight-hour  law  is  a  wide  one  and  no  one  can 
tell  whither  it  will  lead.  Not  so  long  ago  some  of 
the  States  enacted  what  are  known  as  "full-crew" 
railroad  laws  but  in  other  States  similar  measures 
were  defeated.  There  is  nothing  to  prevent  a 
Federal  law  being  enacted  which  will  fasten  the 
desired  legislation  upon  all  the  States.    All  social 


128    FEDERAL  POWER:    ITS  GROWTH 

and  industrial  reforms  may  be  accomplished  in  the, 
same  manner.  Woman  suffrage,  with  women 
wielding  the  ballot  in  more  than  twenty  States, 
must  be  seriously  regarded.  When  the  women 
voters  desire  to  invoke  Federal  power  in  behalf 
of  altruistic  principles  and  back  their  appeal  with 
promise  of  support  or  threat  of  antagonism  at 
the  polls,  the  laws  which  they  propose  will  be  en- 
acted, and  the  units  which  we  now  designate  by  the 
name  of  States  may  find  themselves  more  atro- 
phied than  ever. 

Perhaps,  after  all,  the  climax  of  Federalism  is 
to  be  found  in  the  so-called  Federal  Reserve  Act. 
Under  this  law,  which  has  reformed  the  currency 
system  of  the  country,  a  Federal  Reserve  Board 
has  been  appointed.  It  consists  of  seven  mem- 
bers of  whom  two  are  the  Secretary  of  the 
Treasury  and  the  Comptroller  of  the  Currency. 
The  other  five  are  named  by  the  President  and 
confirmed  by  the  Senate.  As  all  the  national 
banks  are  required  by  the  law  to  enter  the  Fed- 
eral Reserve  system  or  forfeit  their  charters,  with 
the  privilege  of  similar  affiliation  accorded  to 
State  banks  and  trust  companies,  the  entire  mon- 
etary system  of  the  country  is  thus  placed  under 
supervision  of  seven  men,  all  of  whom  are,  in  turn, 


AND  NECESSITY  129 

appointees,  and  to  that  extent  creatures,  of  the 
President.  The  total  capitalization  of  the  7,579 
national  banks  thus  brought  together  is  over 
$1,000,000,000.  Their  deposits  reach  the  tre- 
mendous aggregate  of  $22,882,000,000  addi- 
tional and  this  amount  will  be  enormously  in- 
creased by  the  receipts  of  the  government,  which 
are  now  deposited  in  the  reserve  banks  instead 
of  the  Federal  Treasury.  Here,  then,  are  seven 
men,  located  in  the  National  Capital,  agents  of 
the  Federal  government,  virtually  holding  many 
billions  of  dollars.  While  the  wisdom  of  legal- 
izing this  enormous  power  seems  now  unques- 
tioned, it  is  appropriate  to  recall  the  memorable 
fight  made  by  Andrew  Jackson  against  the  Bank 
of  the  United  States.  There  is  a  difference,  of 
course,  between  that  institution  and  the  Federal 
Reserve  banks  controlled  by  the  Federal  Reserve 
Board,  because  the  former  was  a  private  con- 
cern, even  though  chartered  by  Congress,  while 
the  latter  are  directly  under  government  control. 
At  the  same  time,  the  words  of  Andrew  Jackson 
are  not  altogether  without  bearing  upon  the  pres- 
ent situation.  His  struggle  against  the  Bank  was 
based  upon  his  antagonism  to  the  control  of  a  vast 
amount  of  wealth  by  a  certain  few;  yet  the  Bank 


130    FEDERAL  POWER:    ITS  GROWTH 

of  the  United  States  dealt  with  millions  where 
the  Federal  Reserve  Board  has  to  do  with  bil- 
lions. The  Bank  of  the  United  States,  as  Jack- 
son pointed  out,  "possessed  the  power  to  make 
money  plentiful  or  scarce  at  its  pleasure  at  any 
time  or  at  any  place  by  controlling  the  issues  of 
other  banks  and  permitting  an  expansion  or  com- 
pelling a  general  contraction  of  the  circulating 
medium  according  to  its  will."  This  criticism 
applies  with  equal  force  to  the  Federal  Reserve 
Board.  It  was  also  Jackson's  opinion  that  "to 
give  the  President  the  control  over  the  currency 
and  the  power  over  individuals  now  possessed 
by  the  Bank  of  the  United  States,  even  with  the 
material  difference  that  he  is  responsible  to  the 
people,  would  be  as  objectionable  and  dangerous 
as  to  leave  it  where  it  is."  It  is  not  a  far  cry 
from  this  declaration  of  Jackson  to  the  system 
now  enacted  into  law;  and  a  feeling  of  anxiety 
naturally  arises  at  the  thought  that  some  day 
there  may  be  in  the  White  House  a  President 
who  would  convert  the  Federal  Reserve  Board 
into  an  instrument  for  the  accomplishment  of  his 
revenge  or  the  furtherance  of  his  ambition.  Upon 
these  seven  men  there  rests  a  great  responsibility. 
They  can  use  the  Federal  power,  as  no  other  men 


AND  NECESSITY  131 

can,  to  press  the  sensitive  money  nerve  of  the  na- 
tion; and  yet  it  must  again  be  emphasized  that 
this  power  was  granted  by  the  representatives 
of  the  people..  It  is  true  that  the  legislation  which 
authorized  it  was  recommended  and  urged  with 
much  insistence  by  the  President,  but  it  was  not 
incumbent  upon  Congress  to  unwillingly  heed  the 
presidential  demand.  Whether  the  control  of 
billions  of  dollars  by  Federal  agents  is  to  be  for 
good  or  ill,  the  representatives  of  the  people  are 
responsible  and  the  people  themselves  must  ac- 
cept the  consequences. 

As  an  evidence  that  we  have  not  reached  the 
limit  of  the  application  of  Federal  power,  shoals 
of  measures  are  introduced  in  each  succeeding  ses- 
sion of  Congress  pointing  the  way  to  further  ex- 
tensions. For  instance,  Maryland,  Rhode  Island, 
New  York,  New  Jersey,  and  West  Virginia  having 
adopted  State  laws  to  eliminate  idleness,  and  these 
laws  having  been  executed  with  some  degree  of 
success,  it  is  now  proposed,  through  Federal  legis- 
lation, to  apply  the  same  idea  to  the  entire  nation. 
There  are  also  propositions  to  punish  the  false 
advertisement  of  any  security  or  commodity  whieh 
enters  into  interstate  commerce;  to  establish  uni- 
form prices  for  uniform  commodities;  to  attach  a 


132    FEDERAL  POWER:    ITS  GROWTH 

Federal  label  to  all  fabrics  and  leather  goods ;  to 
provide  for  the  Federal  inspection  and  grading  of 
grain;  and  to  fix  the  size  of  fruit  baskets.  The 
National  Wage  Commission  bill  has  many  advo- 
cates. It  provides  that  the  President  shall  ap- 
point a  wage  commissioner  for  each  Congressional 
district  in  the  United  States  to  investigate  every 
complaint  of  alleged  insufficient,  inequitable  or  un- 
just wage.  This,  of  course,  would  be  Federal 
interference,  supervision  and  control  to  the  last 
degree.  Senator  Chilton,  of  Texas,  has  seriously 
proposed  that  the  Federal  Government  shall  es- 
tablish a  minimum  wage  of  $9  per  week  for  all 
females  employed  by  persons,  firms  or  corpora- 
tions doing  an  interstate  commerce  business. 
Another  proposition  defines  and  regulates  invest- 
ment companies  authorized  to  use  the  mail  and 
makes  the  very  act  of  using  the  mails  a  sufficient 
foundation  for  bringing  any  person,  firm  or  cor- 
poration within  the  sphere'  of  Federal  control. 

These  instances  could  be  multiplied.  They  il- 
lustrate the  tendency  of  the  times.  There  is  ab- 
solutely no  limit  to  the  phases  which  invite  the 
application  of  Federal  authority,  apart  from  any 
question  of  war  emergency.  Congress  has  al- 
ready gone  far;  but  judging  the  future  from  the 


AND  NECESSITY  13$ 

past,  it  has  only  touched  the  edges  of  the  great 
domain  wherein  Federal  power  may  be  exerted. 
No  one  can  examine  the  record  of  the  laws  already 
passed,  nor  scan  the  list  of  measures  awaiting 
action,  without  realizing  that  popular  approval  is 
bestowed  upon  every  effort  to  invoke  Federal 
aid  in  the  securement  of  beneficent  results. 


134    FEDERAL  POWER:    ITS  GROWTH 


Chapter  IX 


THE  SUPREME  COURT  AS  THE  BULWARK  OF 
FEDERALISM 


THE  people,  through  their  representatives, 
invoked  Federal  aid  to  remedy  nation-wide 
evils  and  prevent  monopolistic  domination.  Those 
upon  whom  the  heavy  hand  of  Federal  power  was 
laid  have  appealed,  in  turn,  to  the  Supreme  Court 
of  the  United  States.  They  have  raised  grave 
questions  of  constitutional  interpretation  and  upon 
the  decision  of  these  questions  much  has  depended. 
Fortunately  for  the  people,  the  Supreme  Court  has 
approached  the  legal  problems  presented  for  its 
adjudication  with  a  high  conception  of  the  respon- 
sibilities involved.  More  than  this,  it  apparently 
has  realized  that  only  through  the  employment  of 
the  methods  which  the  people  had  devised  could 
the  much-desired  reforms  be  accomplished.  It 
has,  therefore,  persistently  upheld  all  forms  of 
Congressional  legislation.  It  has  been  the  very 
bulwark  of  Federalism.    It  has  gone  to  the  utmost 


AND  NECESSITY  135 

limit  in  affording  a  judicial  foundation  for  Federal 
control. 

It  is  well  that  this  has  been  the  case.  If  instead 
of  being  in  thorough  sympathy  with  the  spirit 
which  created  the  Interstate  Commerce  Commis- 
sion and  which  inspired  the  Anti-Lottery  Law,  the 
Anti-Trust  Law,  the  Pure  Food  Law,  the  White 
Slave  Law,  and  the  scores  of  other  Federal  enact- 
ments which  entrusted  Federal  agents  with  the 
protection  of  life,  health  and  morals  of  the  people, 
the  Supreme  Court  had  displayed  an  antagonistic 
sentiment,  the  accomplishment  of  reform  would 
have  been  delayed.  It  would  not  have  been  pre- 
vented, for,  sooner  or  later,  the  people  would 
have  found  some  way  to  reach  the  desired  end. 
The  movement  to  resolve  all  questions  of  consti- 
tutional construction  at  the  ballot  box  or  the  at- 
tempt to  secure  easy  and  frequent  amendment  of 
the  Constitution,  would  have  been  greatly  stimu- 
lated and,  finally,  prevailed.  The  fact  is,  how- 
ever, that  the  Supreme  Court,  although  its  mem- 
bers are  properly  far  removed  from  political  in- 
fluence and  popular  clamor,  has  been  thoroughly 
cognizant  of  and  responsive  to  the  increasing  de- 
mand for  the  betterment  of  human  life  and  its 
environment.    No  one  to-day  asks,  with  the  guilty 


136    FEDERAL  POWER:    ITS  GROWTH 

evasion  of  Cain,  "Am  I  my  brother's  keeper?" 
On  the  contrary,  the  responsibility  of  brotherhood 
is  universally  avowed  and  accepted.  Legislation 
tainted  with  a  suspicion  of  sordidness  and  selfish- 
ness, which  benefits  the  few  at  the  expense  of  the 
many,  is  shunned  as  an  evil  thing,  while  proposi- 
tions that  seek  to  ameliorate  human  conditions 
are  stamped  with  legislative  approval. 

With  this  spirit  the  Supreme  Court  is  in  entire 
harmony.  A  statement  recently  made  public  shows 
that  out  of  563  decisions  rendered  between  1887 
and  191 1  upon  questions  involving  what  are  known 
as  social  justice  laws,  it  has  rendered  affirmative 
opinions  in  all  but  three.  One  of  these  held  in- 
valid an  anti-trust  law  of  Illinois  because  it  ille- 
gally discriminated  in  favor  of  certain  classes. 
The  second  nullified  a  statute  of  Louisiana  which 
forbade  citizens  to  order  insurance  through  the 
mail  from  foreign  insurance  companies,  it  being 
held  that  this  law  was  an  interference  with  the  lib- 
erty of  contract.  The  third  was  the  famous  bake- 
shop  case,  in  which  the  court  held  unconstitutional 
the  bakers'  ten-hour  day  law  in  New  York.  On  the 
other  hand,  it  has  sustained  State  laws  for  the 
suppression  of  gambling  and  bucket-shop  and 
option  speculation,  for  the  prohibition  of  the  sale 


AND  NECESSITY  137 

of  liquor  and  cigarettes,  for  the  regulation  of  cor- 
porations, the  safety  of  miners  and  the  abolition 
of  child  labor,  and  numerous  other  equally  com- 
mendable objects.  It  has  allied  itself  with  the 
modern  prohibition  movement  so  thoroughly  as  to 
declare  that  the  right  to  sell  intoxicating  liquors 
is  not  one  of  the  privileges  and  immunities  of  citi- 
zenship granted  by  the  Constitution.  It  has  com- 
pelled the  deportation  of  alien  prostitutes  and  not 
only  has  it  decided  the  White  Slave  Act  to  be 
constitutional,  but  has  upheld  it  in  every  case, 
both  in  letter  and  spirit,  even  to  the  extent  of  de- 
claring that  it  does  not  impinge  upon  the  reserved 
police  powers  of  the  State.  With  this  knowledge 
of  the  high  ideals  which  actuate  the  minds  of  the 
members  of  the  Supreme  Court,  it  is  easy  to  ap- 
preciate its  friendly  attitude  toward  Federal  legis- 
lation which  seeks  the  betterment  of  the  entire 
people. 

It  might  be  supposed  that  the  Supreme  Court, 
in  thus  sustaining  State  progressive  legislation,  is 
committed  to  the  idea  that  through  the  States, 
rather  than  through  Federal  agency,  the  largest 
degree  of  accomplishment  is  possible.  Such,  how- 
ever, is  not  the  case.  It  aids  and  abets  the  States 
in   their   praiseworthy   endeavors  until   Federal 


138    FEDERAL  POWER:    ITS  GROWTH 

laws  are  enacted  and  then  it  instantly  recognizes 
the  supremacy  of  Congressional  action.  Being 
observant,  it  is  fully  aware  that  the  enactments 
of  State  legislatures  are  necessarily  restricted  in 
their  beneficial  effect.  Each  State  is  only  one- 
forty-eighth  of  the  whole.  The  State  may  do 
certain  things,  as  was  held  in  one  of  the  Em- 
ployers' Liability  cases,  until  Congress  exercises 
its  constitutional  function,  and  then  the  Federal 
legislation  supersedes  all  State  law  upon  that  sub- 
ject. Realizing  that  a  Federal  law  benefits  the 
entire  nation,  the  court,  whenever  such  is  brought 
to  its  attention,  hastens  to  sustain  its  legality  if  it 
rests  upon  the  slightest  foundation  of  constitu- 
tional authority.  There  have  been  only  a  few 
adverse  rulings.  One  was  the  decision  against  the 
income  tax  law,  the  unconstitutionality  of  which 
was  narrowly  affirmed  by  a  vote  of  five  to  four. 
The  people  have  since  remedied  this  defeat  of 
their  expressed  will  by  adding  an  amendment  to 
the  Constitution.  Another  was  the  decision  in 
which  the  first  Employers'  Liability  Act  was  held 
to  be  invalid  because  it  included  within  its  provi- 
sions an  employee  not  engaged  in  interstate  com- 
merce. Congress  thereupon  passed  an  amended 
measure  which  has  not  only  been  sustained  but  has 


AND  NECESSITY  139 

been  declared  to  be  paramount  to  all  State  laws. 

The  restraining  hand  of  Federal  power  has 
been  laid  by  the  Supreme  Court  upon  State  legis- 
latures which  sought  to  bargain  away  the  public 
health  and  the  public  morals,  while  peonage,  al- 
lowed under  the  laws  and  decisions  of  some 
States,  has  been  declared  to  be  involuntary 
servitude  within  the  meaning  of  the  Constitution. 
The  limitation  upon  State  action  is  fully  set 
forth  in  the  decision  in  the  case  of  Taylor  vs. 
Thomas,  in  which  it  is  declared  that  judicial  and 
legislative  acts  of  a  State,  hostile  in  their  purpose 
or  mode  of  enforcement  to  the  authority  of  the 
Federal  Government,  or  which  impair  the  rights 
of  citizens  under  the  Federal  Constitution,  are 
invalid  and  void.  In  the  enforcement  of  the  Four- 
teenth amendment,  which  provides  that  "no  State 
shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any 
person  of  life,  liberty  or  property,  without  due 
process  of  the  law;  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  its  laws," 
the  Supreme  Court  has  demanded  of  the  States 
a  strict  accountability. 

Numerous  decisions  have  been  rendered  which 


140    FEDERAL  POWER:    ITS  GROWTH 

insist  that  the  prohibitions  of  this  amendment 
extend  to  all  the  acts  of  a  State,  whether  exer- 
cised through  its  legislative,  its  executive  or  its 
judicial  authorities.  The  Court  has  even  gone 
beyond  the  text  of  a  State  law  to  determine 
whether  an  unjust  purpose  was  concealed.  Take, 
for  instance,  the  ordinance  of  the  San  Fran- 
cisco supervisors  which  provided  that  no  laundry 
should  be  operated  except  in  a  building  constructed 
of  brick  or  stone.  This  was  plainly  discriminatory 
legislation.  The  Supreme  Court  decided  that 
"though  a  law  be  fair  upon  its  face  and  impartial 
in  its  appearance,  yet  if  it  is  administered  by  pub- 
lic authority  with  an  evil  eye  and  an  unequal  hand 
so  as  to  make  illegal  discrimination  between  per- 
sons in  similar  circumstances,"  it  violates  the  Con- 
stitution by  being  a  denial  of  equal  rights.  Hun- 
dreds of  cases  of  real  or  fancied  partiality  on  the 
part  of  a  State  for  one  citizen  as  against  another 
have  been  patiently  heard  by  the  Supreme  Court, 
including  even  the  question  whether  osteopaths  in 
Texas  are  persons  practicing  medicine,  and  where 
injustice  has  been  proven,  the  Federal  power  has 
been  interposed  and  equity  secured.  There  would 
be  no  necessity  for  these  appeals  if  the  States  did 
not   occasionally  stray   from  the   path  of  even- 


AND  NECESSITY  141 

handed  justice  and  grant  favors  to  their  own  citi- 
zens which  they  are  unwilling  to  accord  to  others. 
Tennessee,  for  instance,  enacted  a  statute  which 
gave  to  residents  of  the  State  priority  over  non- 
residents in  the  distribution  of  the  assets  of  a  for- 
eign corporation.  The  Supreme  Court  declared 
that  these  selfish  privileges  could  not  be  granted 
and  through  the  exercise  of  the  Federal  power 
prevented  the  consummation  of  an  evident  wrong. 
It  declared  invalid  the  Oklahoma  law  which  for- 
bade foreign  corporations  from  appealing  to  the 
Federal  Courts  and  held  unconstitutional  the 
South  Dakota  statute  making  railroad  corpora- 
tions liable  for  double  damages  in  certain  cases. 
More  than  this,  the  Supreme  Court  has  jealously 
guarded  the  constitutional  powers  of  Congress  as 
to  the  right  to  regulate  commerce  and  has  pre- 
vented any  encroachment  upon  these  powers  by 
the  States.; 

A  natural  corollary  of  the  Court's  position  in 
maintaining  Federal  supremacy  over  the  States 
has  been  the  upholding  of  Federal  legislation. 
The  principle  prevails  that  Congress  must  vio- 
lently disregard  a  plain  provision  of  the  Con- 
stitution before  the  Supreme  Court  will  under- 
take to  set  aside  the  will  of  the  people  as  expressed 


142    FEDERAL  POWER:    ITS  GROWTH 

through  their  representatives.  Once  in  a  while 
this  happens,  and  when  Congress  passed  a  law 
declaring  it  a  criminal  offense  for  any  agent  or 
officer  of  an  interstate  carrier  to  discharge  an 
employee  of  that  carrier  because  of  his  member- 
ship in  a  labor  organization,  the  Court  held  that 
the  statute  was  an  invasion  of  personal  liberty 
and  the  rights  of  property.  At  the  same  time, 
these  adverse  decisions  are  the  exceptions  rather 
than  the  rule.  On  the  other  hand,  it  has  held 
that  the  constitutional  guarantee  of  religious  free- 
dom was  not  intended  to  prohibit  legislation 
against  polygamy.  When  it  was  claimed  that  the 
Federal  power  could  not  keep  lottery  advertise- 
ments out  of  the  newspapers  because  such  restric- 
tion abridged  the  liberty  of  the  press,  the  Court 
decided  that  the  law  was  valid.  The  constitu- 
tionality of  the  Legal  Tender  Acts  was  sustained 
as  being  the  proper  means  of  carrying  into  execu- 
tion the  legitimate  powers  of  the  government. 

The  Court's  belief  in  the  power  of  the  Federal 
government  over  corporations  is  shown  in  the 
numerous  decisions  sustaining  the  Sherman  Anti- 
Trust  Law.  Notwithstanding  the  fact  that  it  read 
the  word  "reasonable"  into  the  statute,  it  has  dis- 
solved the  Sugar  Trust,  the  Standard  Oil  Trust, 


AND  NECESSITY  143 

the  Tobacco  Trust,  and  other  gigantic  combina- 
tions. It  over-ruled  the  consolidation  of  the 
Northern  Pacific  and  Great  Northern  railroads, 
known  as  the  Northern  Securities  Company,  and 
compelled  the  Union  Pacific  railroad  to  surrender 
the  stock  of  the  Southern  Pacific  railroad  which 
it  had  acquired.  In  at  least  four  important  cases, 
including  the  famous  litigation  against  the  Dan- 
bury  Hatters'  Union,,  it  interposed  the  Federal 
power  against  aggrieved  labor  organizations.  In 
the  Trans-Missouri  Freight  Association  case  it 
applied  the  Sherman  Law  to  railroad  corporations 
in  order  to  protect  the  people;  and  in  all  of  the 
other  cases  which  have  engaged  its  attention  it 
over-ruled  contentions  which  shrewd  lawyers 
brought  forward  to  prevent  the  law  from  being 
operative  against  conspiracies  in  restraint  of  trade. 
In  the  same  broad  manner  it  has  dealt  with  the  law 
to  regulate  commerce,  under  which  the  Interstate 
Commerce  Commission  was  created,  and  has  made 
the  railroads  subservient  to  Federal  authority. 
It  has  sustained  that  Commission  whenever  pos- 
sible. It  has  even  gone  so  far  as  to  decide, 
in  the  Chicago  Junction  railway  case,  that  serv- 
ice performed  entirely  within  a  State  is  still  sub- 
ject to  the  provisions  of  Federal  legislation  if  it 


144    FEDERAL  POWER:    ITS  GROWTH 

is  a  part  of  interstate  commerce,  and  has  de- 
clared that  since  the  passage  of  the  Hepburn  Act 
it  is  beyond  the  power  of  a  State  to  regulate  even 
the  delivery  of  cars  for  interstate  shipments.  It 
has  prevented  the  courts  from  setting  aside,  under 
the  guise  of  exerting  judicial  power,  certain  orders 
of  the  Interstate  Commerce  Commission,  and  has 
sustained  the  Act  which  forbids  interstate  carriers 
from  transporting  articles  or  commodities  in  which 
they  had  a  legal  ownership.  It  sustained  the 
Hours  of  Service  Act  upon  the  ground  that  each 
over-worked  employee  presents  toward  the  pub- 
lic a  distinct  source  of  danger.  Its  decision  up- 
holding the  law  against  railroad  rebates  abolished 
that  evil  for  all  time,  while  the  verdict  of  legality 
which  it  gave  to  the  corporation  income  tax  law 
of  19 13  enabled  the  government  instantly  to  add 
$30,000,000  annually  to  the  Federal  treasury. 

Not  only  has  the  Supreme  Court  thus  given  the 
force  of  judicial  sanction  to  Federal  laws  which 
increase  Federal  power  but  it  has,  in  more  cases 
than  one,  opened  wide  the  door  of  refuge  in  a 
Federal  court.  It  has  declared,  in  the  case  of 
the  Union  Pacific  Railroad  vs.  Myers,  that  "it  is 
sufficient  for  the  jurisdiction  of  the  United  States 
if  the  suit  involves  necessarily  a  question  depend- 


AND  NECESSITY  145 

ing  upon  the  Constitution,  laws  and  treaties  of 
the  United  States."  In  another  case  it  is  asserted 
that  the  fact  that  a  party  to  an  action  is  a  cor- 
poration created  by  the  laws  of  the  United  States 
makes  the  question  a  Federal  one  for  the  purpose 
of  jurisdiction  by  a  circuit  court.  Still  further,  in 
the  case  of  Nashville  vs.  Cooper,  it  was  held  that 
"it  is  no  objection  to  the  jurisdiction  of  the  Fed- 
eral courts  that  questions  are  involved  which  are 
not  all  of  a  Federal  character.  If  one  of  the  lat- 
ter exists,"  it  was  added,  "the  court,  having  as- 
sumed jurisdiction,  will  proceed  to  decide  every 
question  in  the  case."  Having  expressed  these  and 
kindred  views,  it  is  easy  to  understand  how  the 
Supreme  Court  promptly  brushed  aside  the  con- 
tention that  the  Federal  laws  which  authorized 
Federal  officials  to  make  rules  and  regulations 
were  unconstitutional  in  that  they  invested  the 
executive  branch  of  the  government  with  legisla- 
tive or  judicial  functions.  This  was  the  argu- 
ment made  against  the  orders  of  the  Interstate 
Commerce  Commission;  against  the  regulations 
prescribed  by  the  Commissioner  of  Internal  Rev- 
enue in  connection  with  the  marks  and  brands 
upon  packages  of  oleomargarine;  against  the 
power  delegated  to  the  Secretary  of  the  Treasury 


146    FEDERAL  POWER:    ITS  GROWTH 

to  establish  standards  of  tea ;  against  the  authority 
given  to  the  Secretary  of  War  to  determine 
whether  a  bridge  is  an'unreasonable  obstruction  to 
navigation;  against  the  power  lodged  with  the 
Secretary  of  Agriculture  making  criminal  all  vio- 
lations of  the  rules  and  regulations  promulgated 
by  him  for  the  control  of  forest  reservations; 
and,  most  important  of  all,  when  it  was  claimed 
to  be  an  absolutely  unwarranted  delegation  of 
legislative  power  to  the  Federal  executive  to  au- 
thorize the  President,  in  the  Tariff  Act  of  October 
I,  1890,  to  suspend  upon  a  given  contingency  the 
provisions  of  an  act  relating  to  the  free  importa- 
tion of  certain  articles. 

All  of  these  contentions  the  Supreme  Court 
over-ruled,  asserting  that  Congress  may,  in  its 
discretion,  employ  any  appropriate  means  not  for- 
bidden by  the  Constitution  to  carry  into  effect 
and  accomplish  the  objects  of  a  power  given  to 
it  by  the  Constitution.  In  other  words,  it  is  now 
a  well-established  principle  that  if  Congress  seeks 
to  attain  certain  necessary  results,  the  employ- 
ment of  delegated  power  to  secure  those  results 
is  perfectly  justifiable.  If  the  Court  had  held 
otherwise  the  work  of  the  Federal  legislature 
would   have   been  tedious   and   intricate.      As   it 


AND  NECESSITY  Ut 

is,  upon  the  strength  of  these  decisions,  it  is  only 
necessary  for  Congress  to  determine,  on  behalf 
of  the  people,  that  certain  things  must  be  done 
and  then  authorize  some  Federal  agent  to  devise 
the  details  by  which  the  law  can  be  made  effec- 
tive. It  must  be  admitted,  however,  that  the  line 
of  demarcation  between  the  legislative  and  the 
executive  function  almost  disappears  when  com- 
prehensive rules  and  regulations,  which  have  the 
force  of  law,  are  promulgated  by  the  official  head 
of  a  Federal  department. 

It  must  not  be  understood,  however,  that  the 
Supreme  Court  in  thus  vitalizing  Federal  control, 
has  entirely  disregarded  the  State  as  an  entity. 
In  the  Minnesota  and  Missouri  railroad  rate  cases 
it  admitted  the  right  of  a  State  railroad  commis- 
sion to  fix  maximum  intrastate  rates,  although  it 
reserved  the  authority  to  determine  whether  these 
rates  were  reasonable  or  confiscatory.  It  has 
uniformly  held  that  the  first  clause  of  the  seventh 
amendment  to  the  Constitution  in  regard  to  the 
right  of  trial  by  jury  relates  only  to  Federal  courts 
and  that  the  States  are  left  to  regulate  trials  in 
their  own  courts.  It  regards  the  first  ten  amend- 
ments to  the  Constitution  as  being  limitations  ex- 
clusively upon   Federal  power.      It   also   admits 


148    FEDERAL  POWER:    ITS  GROWTH 

that  "the  State  has  undoubtedly  the  power  by  ap- 
propriate legislation  to  protect  the  public  morals, 
the  public  health  and  the  public  safety,"  the  only 
restriction  being  that  it  must  afford  every  person 
the  equal  protection  of  its  laws.  It  also  leaves 
to  State  constitutions  and  State  laws  the  protec- 
tion of  property  from  unjust  or  oppressive  local 
taxation.  Regarding  the  recognition  of  the  police 
powers  of  the  State,  it  has  held  that  these  powers 
may  be  exercised  when  they  "do  not  interfere  with 
the  powers  or  Constitution  of  the  General  Gov- 
ernment." The  intimation  of  reserved  Federal 
powers  in  all  the  decisions  relating  to  the  police 
powers  of  the  States  is  significant.  Already,  in 
the  settlement  of  social  problems,  Federal  laws 
are  trenching  closely  upon  the  police  powers  of 
the  State ;  and  in  the  near  future,  when  these  enact- 
ments are  brought  before  the  Supreme  Court,  that 
tribunal  will  felicitate  itself  upon  the  foresight 
which  led  it  to  suggest  that  even  upon  the  police 
powers  of  the  State  there  are  constitutional  limita- 
tions. 

It  is  impossible,  within  the  compass  of  a  single 
chapter,  to  more  fully  discuss  the  Federalistic 
trend  of  the  decisions  of  the  Supreme  Court. 
Enough  has  been  given,  however,  to  demonstrate 


AND  NECESSITY  149 

that  the  members  of  that  great  tribunal  are  thor- 
oughly imbued  with  the  wisdom  and  importance  of 
strengthening  the  arm  of  the  Federal  govern- 
ment. Adopting  the  theory  of  Marshall  that  the 
Constitution  was  ordained  and  established  by  the 
people  of  the  United  States  for  themselves,  for 
their  own  government,  and  not  for  the  govern- 
ment of  the  individual  States,  they  have  found  in 
that  Constitution  ample  justification  for  every  step 
which  the  people  have  taken  toward  investing  the 
Federal  government  with  additional  power. 


150    FEDERAL  POWER:    ITS  GROWTH 


Chapter  X 

THE  POWER  OF  THE  PRESIDENT 

THE  growth  of  the  Federal  power  has  been 
due  to  the  representatives  of  the  people. 
The  embodiment  of  that  power  is  the  President 
of  the  United  States.  This  could  not  be  other- 
wise. Power  is  ineffective  unless  exercised  through 
executive  agency;  and  so,  more  and  more,  the 
authority  which  has  been  conferred  upon  the  Fed- 
eral Government  has  carried  with  it  an  increase 
of  power  for  the  head  of  that  government. 

It  must  be  borne  in  mind  that  no  President 
can  escape  the  atmosphere  of  Federalism  with 
which  he  is  surrounded.  His  position  compels 
a  nation-wide  point  of  view.  Senators  and  Rep- 
resentatives, no  matter  how  broad-minded  and 
patriotic  they  may  be,  are  likely  to  be  concerned 
with  matters  that  virtually  affect  their  especial 
States  or  districts.  The  President,  on  the  other 
hand,  being  responsible  for  the  destiny  of  the 
nation  as  a  whole,  and  being  dependent  politi- 


AND  NECESSITY  151 

cally  upon  the  commendation  of  all  the  people, 
cannot  limit  the  sphere  of  his  activities  to  the  nar- 
row confines  of  a  State.  Every  President  has,  by 
the  very  circumstance  of  his  position,  become  an 
upholder  of  the  doctrine  of  Federalism.  Even 
Thomas  Jefferson  became  nationalized,  so  to 
speak,  after  his  election  to  the  presidency.  In  re- 
cent years  an  immense  amount  of  responsibility 
has  been  placed  upon  the  President;  and,  more 
than  once,  Presidents  have  used  the  prestige  and 
power  of  their  position  to  accomplish  the  enact- 
ment into  law  of  policies  which  they  personally 
deemed  of  benefit  to  the  people  of  the  United 
States. 

Examples  of  this  character  have  been  especially 
frequent  during  the  last  two  decades.  When,  for 
instance,  President  Cleveland  came  into  power  on 
March  4,  1893,  he  found  upon  the  statute  books 
a  law  authorizing  the  purchase  of  4,500,000 
ounces  of  silver  each  month.  Whether  the  opera- 
tion of  this  act  was  responsible  for  the  financial 
troubles  then  beginning  to  affect  the  country  was, 
in  the  public  mind,  still  an  open  question;  but  in 
the  judgment  of  the  President  there  was  no  doubt 
whatever.  In  the  message  submitted  by  him  to 
Congress  at  the  beginning  of  the  special  session 


152    FEDERAL  POWER:    ITS  GROWTH 

which  he  convened,  he  laid  all  the  blame  at  the 
door  of  the  statute  and  demanded  its  repeal.  He 
did  not  confine  his  effort  to  the  constitutional  limi- 
tation of  communicating  his  views  to  Congress, 
but  brought  personal  pressure  to  bear  upon  the 
legislative  branch  of  the  government.  Even  now 
one  can  recall  how  the  emissaries  of  the  Presi- 
dent thronged  the  corridors  of  the  capitol;  how 
strange  and  remarkable  conversions  were  wrought 
through  influences  which  emanated  from  the  White 
House  and  which  it  was  not  politic  to  withstand. 
When  the  bill  repealing  the  silver-purchasing  law 
went  to  the  Senate  it  did  not  command  a  majority 
of  that  body;  but  during  the  ensuing  three  months 
of  acrimonious  debate,  the  power  of  the  President 
was  exerted  to  such  an  extent  as  to  win  to  the 
support  of  the  measure  the  votes  needed  to  over- 
come the  deficiency.  No  one  who  is  at  all  familiar 
with  the  inner  history  of  that  memorable  and  most 
dramatic  struggle  will  dispute  these  statements. 

In  the  McKinley  administration  the  power  of 
the  President  turned  the  wavering  scale  in  favor  of 
the  ratification  of  the  treaty  of  peace  with  Spain, 
wherein  it  was  proposed  to  pay  $20,000,000  for 
the  acquisition  of  the  Philippines,  although  that 
territory  had  already  been  obtained  through  con- 


AND  NECESSITY  153 

quest.  President  Roosevelt  successfully  exerted 
tremendous  pressure  upon  Congress  to  secure  the 
enactment  of  the  law  widely  extending  the  powers 
of  the  Interstate  Commerce  Commission,  the 
Porto  Rican  tariff  law  and  many  other  measures. 
Nothing  less  than  the  power  of  the  President 
could  have  secured  the  passage,  during  President 
Taft's  administration,  of  the  law  concerning  reci- 
procity with  Canada.  And  since  President  Wilson 
has  been  in  the  White  House  there  has  been  a 
constant  exhibition  of  the  power  of  the  President 
over  Congress.  In  the  preparation  of  the  tariff 
bill  he  demanded  that  his  own  views  be  followed, 
not  only  as  to  the  principles  but  as  to  the  very 
details  of  the  proposed  law.  When  he  insisted 
that  it  was  necessary  to  enact  a  law  reforming 
the  currency  system,  Congress  remained  in  Wash- 
ington during  the  long,  hot  summer  months,  in 
obedience  to  his  will,  while  the  spectacle  was 
afforded  of  Senators  and  Representatives  being 
summoned  to  the  White  House,  to  receive,  even 
at  midnight  conferences,  the  executive  direction. 
Another  striking  instance  was  the  enactment  of 
the  law  repealing  the  exemption  of  American 
coastwise  vessels  from  the  payment  of  Panama 
canal  tolls.     In  the  face  of  well-founded  oppo- 


154    FEDERAL  POWER:    ITS  GROWTH 

sition,  President  Wilson  demanded  of  Congress 
that  the  repeal  should  be  effected,  and  Congress 
obeyed.  There  has  hardly  been  an  instance  dur- 
ing the  past  twenty  years  wherein  any  President 
has  been  defeated  in  any  effort  vigorously  prose- 
cuted by  him  to  secure  the  enactment  of  legislation 
upon  which  he  had  deliberately  determined. 

It  is  not  difficult  to  discover  the  source  of  the 
executive  power.  It  lies  very  largely  in  the  dis- 
tribution of  patronage.  A  golden  stream  flows 
through  the  White  House  to  the  remotest  corner 
of  the  country.  It  springs  from  the  national 
treasury.  Under  present  conditions,  any  Presi- 
dent of  the  United  States  has  the  power  to  divert 
this  stream  where  and  whither  he  will — into  the 
pockets,  occasionally,  of  his  personal  friends,  but 
invariably  to  the  financial  benefit  of  his  political 
supporters.  If  money  is  the  lever  that  rules  the 
world  any  President  can  dispense  it  with  a  lar- 
gess that  is  startling.  He  can  stand  beside  the 
public  treasury,  with  one  arm  plunged  deep  into  its 
vaults,  while  the  other  distributes  the  golden  store 
to  a  horde  of  office-holders.  Postmasters,  collec- 
tors of  customs,  revenue  officials,  marshals,  attor- 
neys, consuls,  foreign  ministers — all  these  and 
more  are  recipients  of  bounty  through  presidential 


AND  NECESSITY  155 

favor.  The  only  check  is  the  approval  of  the 
United  States  Senate  on  appointments;  and  the 
members  of  that  body,  knowing  that  their  con- 
stituents are  drinking  deeply  of  the  Pactolian 
stream,  rarely  interpose  an  objection.  Ten  years 
ago  official  figures  obtained  from  the  Government 
departments,  not  including  the  War  and  Navy  De- 
partments, showed  that  the  President  directly  con- 
trolled appointments  which  paid  salaries  amount- 
ing to  approximately  $20,000,000  a  year.  Since 
that  time  the  number  of  Federal  offices  has  been 
so  greatly  increased,  as  a  natural  accompaniment 
of  the  growth  of  Federal  power,  that  the  total  is 
now  appalling  in  its  magnitude.  Statistics  com- 
piled by  the  Civil  Service  Commission  show  that 
on  June  30,  19 17,  the  number  of  officers  and  em- 
ployees in  the  Federal  civil  service  was  517,805. 
Excluding  employees  who  are  within  the  scope  of 
competitive  examination,  or  who  are  laborers  en- 
gaged in  Panama  Canal  work  and  elsewhere,  as 
well  as  mail  contractors,  there  were,  on  the  date 
mentioned,  125,129  persons  who  came  within  the 
presidential  power  of  appointment  or  were  di- 
rectly or  indirectly  named  by  heads  of  depart- 
ments selected  by  the  President.  The  annual  sal- 
aries paid  to  these   appointed  employees  would 


156    FEDERAL  POWER:    ITS  GROWTH 

certainly  aggregate  a  quarter  of  a  billion  dol- 
lars. The  spoils  of  office  which  figured  so  largely 
in  Andrew  Jackson's  administration  were  as  a 
tiny  rivulet  compared  with  the  mighty  patronage 
of  a  President  at  the  present  time.  The  hand 
which  controls  this  enormous  output  of  national 
wealth  is  a  hand  of  power. 

Presidential  pressure  upon  Congress  is  toler- 
ated upon  the  theory  that  the  end  justifies  the 
means,  because  in  practically  every  instance  where 
legislation  has  been  forced  through  Congress 
the  President  was  apparently  actuated  by  sincere 
motives.  The  argument  is  not  sound.  If  the 
presidential  power  can  be  exercised  for  good  it 
may  also  be  made  an  agency  for  evil.  The  fact 
is  that  it  ought  not  to  be  exerted  at  all.  Under 
the  Constitution  the  Government  is  divided  into 
three  branches,  the  legislative,  executive  and 
judicial.  They  are  distinct  and  separate  in  their 
functions  and  in  their  relations  to  each  other.  It 
never  was  intended  that  the  executive  should 
trench  upon  the  legislative,  other  than  through  the 
occasional  presentation  of  a  message  upon  the 
state  of  the  nation.  It  is  one  of  the  evils  of  the 
growth  of  Federal  power  that  the  President  has 
been  afforded  an  opportunity  for  conferring  fa- 


AND  NECESSITY  157 

vors  upon  Senators  and  Representatives  in  the 
matter  of  appointments  to  a  degree  which  makes 
the  situation  serious. 

With  the  knowledge  that  the  attitude  of  an  ad- 
ministration toward  his  candidacy  may  make  him 
or  break  him,  few  legislators  dare  to  be  persona 
non  grata  with  a  President  of  their  political  faith. 
Their  sphere  of  usefulness  in  the  preparation  of 
laws  may  not  be  interfered  with,  but  they  are  po- 
litically weakened  if  they  are  deprived  of  presi- 
dential recognition  and  support.  Perhaps  we  shall 
some  day  have  a  law  which  will  forbid  presiden- 
tial influence  in  elections.  In  the  meantime,  the 
politicians  will  continue  to  follow  the  line  of  least 
resistance ;  and  it  is  always  easier  for  them  to  plead 
party  regularity  and  justify  adherence  to  a  Presi- 
dent than  it  is  to  explain  ^opposition.  Senators 
and  Representatives  also  align  themselves  with 
an  administration  of  their  own  party  because  they 
know  that  if  the  President  is  sustained  by  the. 
country,  their  own  retention  in  office  is  more  cer- 
tainly assured;  while  if  the  President  is  repudi- 
ated, they  will  go  down  with  their  party,  no  mat- 
ter whether  they  were  with  the  President  or 
against  him.  When  it  comes  to  dealing  with  the 
people,   however,  the  presidential  power  is  not 


158    FEDERAL  POWER:    ITS  GROWTH 

always  effective.  The  power  of  patronage  re- 
nominated President  Harrison  in  1892  and  Presi- 
dent Taft  in  191 2,  but  both  were  defeated  at  the 
polls.  It  is  a  reassuring  fact  that  no  President 
has  yet  been  able  to  build  up  an  office-holding  oli- 
garchy that  will  absolutely  insure  his  reelection; 
but  it  is  also  a  fact  that  through  the  distribution  of 
Federal  patronage  an  influence  can  be  exerted 
over  Congress  which,  in  the  hands  of  an  unscrupu- 
lous man,  might  become  a  menace  to  the  country. 
There  is  another  reason  why  the  power  of  the 
President  has  so  greatly  increased.  Congress  is 
apparently  quite  willing  to  place  the  burden  of 
government  upon  his  shoulders.  This  was  evident 
before  the  outbreak  of  the  war;  and  since  war 
has  been  declared  nearly  every  legislative  act  of 
importance  has  added  to  the  President's  duties 
and  responsibilities.  Some  of  these  measures 
have  been  of  the  President's  own  seeking;  but  all 
of  them  have  added  so  tremendously  to  his  author- 
ity that  he  is  to-day  invested  with  more  power  than 
any  other  ruler  in  the  world.  In  the  food  and  fuel 
administration  bill,  for  instance,  he  is  given  prac- 
tically absolute  control  over  the  transportation 
and  distribution  of  food-stuffs;  the  power  to  fix 
prices;  to  fix  the  standards  and  grades  of  food- 


AND  NECESSITY  159 

stuffs;  to  commandeer  supplies  and  even  take  over 
plants,  either  for  the  armed  forces  or  for  the  pub- 
lic good;  to  license  the  importation,  exportation, 
manufacture,  storage  and  distribution  of  the  neces- 
saries of  life;  to  prevent  waste  and  hoarding;  to 
purchase,  store  and  sell  necessaries  at  reasonable 
prices;  and  to  prohibit  the  use  of  foods,  fruits, 
food  materials  or  feeds  in  the  production  of  dis- 
tilled liquors,  except  for  governmental,  industrial 
or  medicinal  purposes.  He  has  been  given  the 
power  to  commandeer  ships  and  ship-construction 
plants ;  to  declare  embargoes ;  to  determine  prior- 
ity of  shipments  of  commodities  by  any  common 
carriers;  to  affect  our  international  relations  and 
the  conduct  of  the  war  by  loaning  $3,000,000,000 
to  our  Allies  in  such  manner  as  his  judgment  may 
dictate;  to  control  absolutely  the  production  of 
aeroplanes,  even  to  the  extent  of  securing  land 
and  buildings  by  any  means  he  sees  fit  to  use ;  and, 
omitting  a  thousand  and  one  other  investments  of 
authority,  to  determine  who  shall  and  who  shall 
not  be  exempted  from  the  operation  of  the  Con- 
scription Law.  Is  it  any  wonder  that  with  so 
much  delegated  power  he  should  object,  as  he  did 
in  his  letter  to  Representative  A.  F.  Lever,  of 
South  Carolina,  on  July  23,  19 17,  to  the  creation 


160    FEDERAL  POWER:    ITS  GROWTH 

of  a  Committee  of  Congressional  Control  on  the 
ground  that  such  supervision  would  render  prac- 
tically impossible  "my  task  of  conducting  the 
war"? 

We  can  accept  with  more  or  less  equanimity,  on 
account  of  war  conditions,  the  announcement  in 
the  New  York  Times,  on  the  eve  of  the  assem- 
bling of  the  second  session  of  the  Sixty-fifth  Con- 
gress, that  "not  in  years  has  there  been  a  session 
of  Congress  in  which  the  legislative  activity  de- 
pended so  entirely  upon  the  initiative  of  the  Ex- 
ecutive" and  that  "leaders  on  both  sides  of  the 
capitol  say  that  they  will  be  guided  in  their  legis- 
lative work  by  the  wishes  of  the  President."  The 
Washington  correspondent  of  the  New  York 
World  asserted  on  Monday,  December  3,  19 17, 
that  Congress  would  "leave  everything  to  'The 
Man  in  the  White  House/  "  and  added  that  "his 
authority  is  absolute,  his  wish  equal  to  a  com- 
mand." It  is  not  a  healthy  symptom  when  we,  as 
a  people,  are  urged  to  "stand  by  the  President," 
as  if  the  other  branches  of  our  tripartite  govern- 
ment were  of  no  concern  whatever  .  This  reminds 
one  of  the  English  motto,  "For  God,  for  King, 
for  Country,"  the  ruler  being  placed  ahead  of 
the  nation.     The  time  is  coming,  however,  when 


AND  NECESSITY  161/ 

the  war  will  be  over,  and  when  the  President  can- 
not have  the  excuse  of  abnormal  conditions  for 
exercising  an  unprecedented  degree  of  autocratic 
power.  Judging  the  future  by  the  past,  we  will 
find  that  no  President  will  willingly  surrender  any 
degree  of  authority  which  he  has  enjoyed.  None 
the  less  must  we  face  squarely  the  constantly  en- 
larging executive  power. 

One  method  of  divorcing  the  executive  from  the 
distribution  of  patronage  was  presented  in  a  speech 
delivered  in  the  United  States  Senate  some  years 
ago  by  Senator  Jonathan  Bourne,  Jr.,  of  Oregon, 
who  proposed  a  constitutional  amendment  trans- 
ferring the  presidential  power  of  nomination  to  a 
permanent  non-partisan  commission  to  be  created, 
with  the  suggestion  that,  in  the  meantime,  the 
responsibility  for  selection  should  be  placed  upon 
Senators  and  Representatives.  Mr.  Bourne  ex- 
pressed the  hope  that  the  crystallization  of  public 
opinion  against  the  misuse  of  power  by  the  Presi- 
dent would  force  presidential  candidates  in  all 
parties  to  announce,  prior  to  their  nomination  or 
election,  that  if  elected  they  would  place  upon 
Senators  and  Representatives  the  responsibility 
for  making  selections  of  all  Federal  appointees  in 
their  respective  States.     Experience  has  demon- 


162    FEDERAL  POWER:    ITS  GROWTH 

strated,  however,  that  these  suggestions  are  neither 
wise  nor  practical.  The  plan  of  a  nonpartisan 
commission  to  make  appointments  was  unsuccess- 
fully experimented  with  in  New  York  State  from 
1780  to  1820.  The  investment  of  Senators  and 
Representatives  with  the  power  of  selection  would 
result  in  a  diffused  responsibility  which  would 
plague  the  country.  Legislative  designation  has 
been  tried  and  abandoned  in  nearly  all  the  States 
in  which  appointments  by  the  legislature  once  ob- 
tained. 

Even  if  there  unfortunately  should  be  a  dis- 
position to  place  upon  national  legislators  the  re- 
sponsibility of  naming  Federal  office-holders,  we 
are  confronted  by  the  fact  that  neither  Presidents 
nor  would-be  Presidents  will  relinquisher  promise 
to  relinquish,  the  machinery  of  control  which  now 
exists  in  the  distribution  of  patronage.  That 
they  should  be  willing  to  do  so  is  true  enough; 
but  what  they  ought  to  do  and  what  they  will  agree 
to  do,  are  two  very  different  propositions.  They 
will  continue  to  use  the  power  of  patronage  to 
influence  those  who  are  disposed  to  be  recalcitrant; 
not  always,  of  course,  in  the  unconcealed  fashion 
of  President  Taft.  There  is  nothing  more  re- 
markable in  the  whole  realm  of  political  corre- 


AND  NECESSITY  163 

spondence  than  the  letter  which  was  made  public 
on  September  15,  19 10,  and  signed  by  Charles  D. 
Norton,  then  Secretary  to  President  Taft.  This 
communication,  addressed  to  a  Republican  party 
leader  in  Iowa  whose  name  was  not  disclosed, 
frankly  stated  that  "while  certain  legislation  pend- 
ing in  Congress  was  opposed  by  certain  Republi- 
cans, the  President  felt  it  to  be  his  duty  to  his  party 
and  to  the  country  to  withhold  Federal  patronage 
from  certain  Senators  and  Congressmen  who 
seemed  to  be  in  opposition  to  the  administration's 
efforts  to  carry  out  the  promises  of  the  party  plat- 
form." Here,  then,  was  a  direct  admission  that 
the  President  had  so  manipulated  the  distribution 
of  Federal  offices  as  to  punish  those  who  were  not 
in  accord  with  his  policies;  and  although  it  was 
added  that  this  discrimination  had  ceased,  the  fact 
that  it  had  been  practiced  was  unblushingly  con- 
fessed. Other  Presidents,  with  more  political 
shrewdness  and  less  innate  honesty  than  Presi- 
dent Taft,  have  never  yet  taken  the  people  into 
their  confidence  to  the  same  extent,  although  it  is 
no  matter  of  doubt  that  they  have  been  equally 
reprehensible. 

The  power  of  the  President  to  shape  national 
policies  is  not  confined  to  his  control  over  Con- 


164    FEDERAL  POWER:    ITS  GROWTH 

gress.  Five  of  the  nine  Associate*  Justices  now 
serving  upon  the  bench  of  the  Supreme  Court  of 
the  United  States  were  appointed  by  President 
Taft,  who  also  nominated  the  present  Chief  Jus- 
tice; and  it  is  safe  to  say  that  Mr.  Taft  was 
thoroughly  conversant  with  the  views  held  by 
each  appointee  upon  constitutional  and  other  ques- 
tions before  he  submitted  their  names  to  the 
Senate,  and  that  each  of  them  reflected  his  own 
opinions.  The  same  assertion  applies  to  the  ap- 
pointment of  Mr.  Brandeis  and  Mr.  Clark  by 
President  Wilson.  The  policy  of  the  govern- 
ment toward  the  railroads  was  also  affected  in  the 
past  by  the  personnel  of  the  Interstate  Commerce 
Commission.  Recently  there  was  a  prolonged  con- 
test over  the  confirmation  of  an  appointee  to  this 
Commission,  on  the  ground  that  his  acts  and  utter- 
ances betrayed  too  plainly  his  attitude  toward  the 
railroads;  but  the  President  insisted  upon  favor- 
able action  and  was  victorious.  The  President 
can  also  put  men  in  his  cabinet  as  the  first  step 
toward  effecting  policies  which  do  not  require 
legislative  sanction,  but  which  may  materially  af- 
fect the  nation  or  the  perpetuation  of  his  party  in 
power.  There  are,  in  fact,  so  many  ways  in 
which  the  power  of  the  President  can  be  and  is 


AND  NECESSITY  165 

exercised,  apart  from  insisting  that  Congress  shall 
do  his  will,  that  unless  that  power  is  safeguarded 
more  carefully  than  at  present,  the  door  of  danger 
is  opened  wide. 


166    FEDERAL  POWER:    ITS  GROWTH 


Chapter  XI 

FEDERAL  POWER  AS  A  POLITICAL  ISSUE 

THE  political  system  which  has  developed  in 
the  United  States  is  one  of  party  govern- 
ment. It  is  important,  therefore,  that  each  party 
should  clearly  and  carefully  define  its  position  in 
order  that  the  people  may  be  able  to  decide  in- 
telligently which  organization  to  support  by  their 
votes.  There  have  been  innumerable  issues  since 
the  election  of  our  first  President,  but  none  pre- 
sents a  more  interesting  subject  for  study  and 
analysis  than  the  question  of  the  limitation  and 
extent  of  Federal  power.  This  is  especially  true 
of  the  early  days  of  the  Republic  when  the  accept- 
ance of  Federal  power  was  not  as  universal  as  it 
is  fo-day. 

It  is  a  significant  fact  that  the  first  words  of 
the  first  platform  adopted  by  the  Democratic 
party  set  forth  a  principle  to  which  that  party 
clung  tenaciously  for  many  years.  "Resolved," 
said  this  declaration,  "that  the  Federal  govern- 


AND  NECESSITY  167 

ment  is  one  of  limited  powers."  This  was  in 
1840.  For  nearly  half  a  century  the  Democrats 
had  been  in  power.  Jefferson,  Madison,  Monroe, 
Jackson  and  Van  Buren  had  been  elected,  and 
even  though  the  term  of  John  Quincy  Adams  in- 
tervened, the  fact  is  that  he  received  a  much 
smaller  popular  vote  than  Jackson  and  became 
President  only  because  the  election  was  thrown 
into  the  House  of  Representatives.  All  these 
men  had  been  upholders  of  the  rights  of  the  States 
and  were  strict  constructionists  of  the  Constitu- 
tion and  it  was  but  natural  that  when  it  became 
necessary  to  present  party  principles  in  concrete 
form  the  ideas  which  had  led  to  Democratic  suc- 
cess should  be  definitely  expressed.  We  find, 
therefore,  that  not  only  was  it  resolved  that  the 
Federal  government  was  one  of  limited  powers 
but  that  the  platform  fairly  bristled  with  a  series 
of  constitutional  "don'ts"  designed  to  restrict  the 
operations  of  the  general  government.  Among 
other  things,  it  was  declared  that  there  could  not 
be,  and  should  not  be,  a  Federal  system  of  internal 
improvements — a  position  upon  which  the  party 
in  later  years  absolutely  reversed  itself. 

With   this   issue   thus   emphasized,   the   party- 
went  down  to  defeat,  William  Henry  Harrison 


168    FEDERAL  POWER:    ITS  GROWTH 

being  elected.  It  is  not  enough  to  say  that  this 
was  not  a  case  of  cause  and  effect  nor  that  Harri- 
son was  elected  because  he  was  a  more  popular 
candidate  than  Van  Buren.  The  fact  is,  and  it 
can  be  proven,  that  when  the  Democratic  party 
decided  to  make  an  issue  before  the  people  on 
the  question  of  halting  the  growth  of  a  strong, 
centralized  government,  it  invited  the  long  period 
of  successive  defeats  which  followed.  Of  course, 
it  could  not  act  otherwise.  Opposition  to  the  con- 
tinuance of  slavery  had  already  become  manifest 
and  there  was  an  increasing  tendency  to  insist  that 
human  bondage  was  an  evil  which  the  Federal 
government  should  exterminate.  The  slave-hold- 
ers in  the  South,  the  majority  of  whom  were 
Democrats,  and  who  controlled  the  political 
destinies  of  Senators  and  Representatives  from 
their  widely  extended  and  important  section,  in- 
sisted that  slavery  was  purely  a  State  matter 
and  that  each  State  must  be  left  to  solve  the 
problem  in  its  own  way.  In  1852  the  Democratic 
platform  unequivocally  asserted  that  Congress 
had  no  right  to  interfere  with  slavery.  It  went 
even  further.  It  pledged  the  Democratic  party 
to  faithfully  abide  by  and  uphold  the  principles 
laid  down  in  the  Kentucky  and  Virginia  resolu- 


AND  NECESSITY  169 

tions  of  1792  and  1798.  These  resolutions,  as 
has  been  previously  shown,  breathed  defiance  of 
State  government  to  national  government;  and 
when  the  Democratic  party  adopted  these  prin- 
ciples "as  constituting  one  of  the  main  founda- 
tions of  its  political  creed"  and  "resolved  to  carry 
them  out  in  their  obvious  meaning  and  import," 
it  again  drew  a  clear  line  of  demarcation  which 
could  not  be  misinterpreted  or  misunderstood. 
Its  leaders,  suffering  political  strabismus  on  ac- 
count of  their  devotion  to  slavery,  could  not  see 
that  their  position  was  untenable  and  even  fatal. 
It  was  all  the  more  unfortunate  for  them  that 
their  position  rested  upon  a  condition  repugnant 
to  the  American  love  of  freedom.  Subsequent 
events  have  proved,  however,  that  their  doctrine 
would  have  gone  down  to  defeat  even  if  it  had 
rested  upon  some  other  foundation. 

The  Republicans  were  only  too  willing  to  fight 
out  the  question  of  national  supremacy  over  the 
slavery  issue.  From  the  very  beginning  they  were 
the  political  successors  of  Hamilton  and  all  the 
other  ultra-Federalists  and  the  struggle  was  alto- 
gether to  their  liking.  Even  before  the  Civil  War 
the  Whigs  were  declaring  for  an  enlargement  of 
Federal  power — the  construction  of  internal  im- 


170    FEDERAL  POWER:    ITS  GROWTH 

provements  and  the  building  of  a  trans-continental 
railroad  through  government  aid.  After  the  war 
the  Republicans  naturally  went  farther.  They  de- 
clared in  1872  that  the  United  States  is  a  nation 
and  not  a  league ;  and  twelve  years  later  expressed 
the  same  idea  more  fully  in  these  words:  "The 
people  of  the  United  States  in  their  organized  ca- 
pacity, constitute  a  nation  and  not  an  American 
federacy  of  states. "  The  Democrats,  in  the  mean- 
time, so  thoroughly  were  they  still  obsessed  with 
the  ante-war  doctrines,  held  to  their  old  position. 
Even  as  late  as  1880  they  were  declaring  opposi- 
tion to  centralization  and  to  "that  dangerous  spirit 
of  encroachment  which  tends  to  consolidate  the 
powers  of  all  the  departments  in  one  and  thus  to 
create,  whatever  be  the  form  of  government,  a 
real  despotism." 

It  was  not  until  1884  that  a  light  broke  upon 
the  Democratic  vision.  The  party  had  long  been 
out  of  power.  Its  members  had  seen  the  Republi- 
cans forging  ahead,  holding  control  because  they 
were  constantly  finding  new  avenues  for  the  exer- 
cise of  Federal  power,  and  it  seemed  to  finally 
dawn  upon  them  that  perhaps  they  had  failed  to 
sense  accurately  the  American  spirit.  In  their 
platform  for  1884  a  significant  sentence  occurs. 


AND  NECESSITY  171 

No  longer  do  they  reiterate  with  futile  frequency 
the  idea  that  the  Federal  government  is  one  of  lim- 
ited powers.  On  the  contrary,  we  now  learn  that 
"as  the  nation  grows  older,  new  issues  are  born  of 
time  and  progress  and  old  issues  perish."  There 
is  even  for*  the  first  time  an  admission  of  "the 
supremacy  of  the  Federal  government,"  even 
though  the  phrase  be  qualified  with  reference  to 
"the  reserved  rights  of  the  States"  and  "the  limits 
of,  the  Constitution."  A  remarkable  result  fol- 
lowed. The  Democratic  party,  for  the  first  time 
^-%in  a  quarter  of  a  century,  elected  its  President. 
It  is  far  more  reasonable  to  believe  that  the  Demo- 
crats were  victorious  because  they  frankly  con- 
fessed the  errors  of  the  past  and  entered  upon 
a  path  in  which  nation-loving  citizens  could  join 
them  than  to  assert  that  a  single  remark  by  a  pub- 
lic speaker  about  rum,  Romanism  and  rebellion 
occasioned  Blaine's  defeat. 

With  a  fatuity  that  seems  inexplicable  the 
Democratic  party  failed  to  hold  the  advanced 
position  which  it  had  taken  and  in  1888  again  de- 
clared its  devotion  to  a  strict  construction  of  the 
Constitution,  with  consequent  defeat.  In  1892  it 
attempted  to  carry  water  on  both  shoulders.  In 
one  paragraph  of  its  platform  it  deplored  that 


TO    FEDERAL  POWER:    ITS  GROWTH 

"the  tendency  to  centralize  all  power  at  the  Fed- 
eral capital  has  become  a  menace  to  the  reserved 
rights  of  the  States,  that  strikes  at  the  very  roots 
of  our  government  under  the  Constitution  as 
framed  by  the  fathers  of  the  Republic."  This 
declaration  lost  whatever  force  an  obsolete  doc- 
trine might  have  had  when  it  was  placed  along- 
side other  utterances  in  the  same  platform.  While 
decrying  centralized  power  in  one  breath,  the 
platform  almost  immediately  thereafter  favored 
"legislation  by  Congress  and  State  legislatures  to 
protect  the  lives  and  the  limbs  of  railway  em- 
ployees and  those  of  other  hazardous  transporta- 
tion companies."  More  than  this,  the  platform 
declared  that  "the  Federal  government  shall  care 
for  and  improve  the  Mississippi  river  and  other 
great  waterways  of  the  Republic,  so  as  to  secure 
for  the  interior  States  easy  and  cheap  transporta- 
tion to  tide  water.  When  any  waterway  of  the 
republic  is  of  sufficient  importance  to  demand  the 
aid  of  the  government,"  the  platform  continued, 
"such  aid  should  be  extended  with  a  definite  plan 
of  continuous  work  until  permanent  improvement 
is  secured."  The  changes  which  the  years  had 
wrought  in  the  evolution  of  Federal  power  are 
made  wonderfully  apparent  in  the  paragraph  just 


AND  NECESSITY  173 

quoted.  The  idea  that  the  Federal  government 
was  constitutionally  helpless  to  enter  within  a 
State  boundary,  even  to  conduct  a  public  improve- 
ment— an  idea  emphatically  asserted  as  a  party 
principle  in  1840 — had  in  1892  passed  into  obliv- 
ion. Upon  this  platform  of  1892  the  Democrats 
won. 

Once  again,  in  1896,  the  Democratic  party 
harked  back  to  its  old  love  and  declared  that  it 
had  "resisted  the  tendency  of  selfish  interests  to 
the  centralization  of  governmental  power  and 
steadfastly  maintained  the  integrity  of  the  dual 
system  of  government  established  by  the  founders 
of  this  republic  of  republics."  There  was  also  a 
touch  of  pride  in  the  declaration  that  "under  its 
guidance  and  teachings  the  great  principle  of  local 
self-government  has  found  its  best  expression  in 
the  maintenance  of  the  rights  of  the  States  and  in 
its  assertion  of  the  necessity  of  confining  the  gen- 
eral government  to  the  exercise  of  the  powers 
granted  by  the  Constitution  of  the  United  States." 

On  the  other  hand,  the  Republican  party  broad- 
ened its  growing  catalogue  of  Federal  activities 
and  won  the  election.  In  the  following  campaign 
of  1900  the  Democrats,  still  failing  to  real- 
ize that  their  fight  to  limit  Federal  powers  had 


174    FEDERAL  POWER:    ITS  GROWTH 

been  a  hopeless  one,  undertook  the  equally  impos- 
sible task  of  minimizing  the  international  power 
which  had  been  thrust  upon  the  United  States  as 
the  outcome  of  the  war  with  Spain.  "The  burn- 
ing issue  of  imperialism,  growing  out  of  the 
Spanish  War,"  declared  the  platform,  "involves 
the  very  existence  of  the  Republic  and  the  de- 
struction of  our  free  institutions.  We  regard  it 
as  the  paramount  issue  of  the  campaign."  The 
issue  was  repudiated  by  the  people.  They  were 
more  and  more  learning  and  loving  national  great- 
ness. The  process  of  evolution  through  which 
the  American  people  had  been  advancing  for  more 
than  a  century  failed  to  make  its  impress  upon 
the  Democratic  mind  and  the  party  went  down 
again  to  defeat.  The  fact  is  that  the  Democratic 
party  placed  a  serious  handicap  upon  itself  when  it 
declared  that  the  Federal  government  was  one  of 
limited  powers.  The  period  between  i860  and 
1 9 1 2  is  more  than  half  a  century.  During  all  that 
time  the  Democrats  were  in  complete  possession  of 
both  the  executive  and  legislative  branches  of  the 
government  for  two  years  only.  Even  in  19 12  the 
combined  Republican  vote  was  over  one  million 
in  excess  of  the  Democratic  vote.  In  the  election 
of  19 1 6  the  Democrats  had  so  thoroughly  begun 


AND  NECESSITY  175 

to  invoke  and  utilize  Federal  power  that  the  ques- 
tion of  dual  sovereignty  was  no  longer  an  issue. 

Nothing  could  better  illustrate  popular  acqui- 
escence in  the  exercise  of  the  largest  possible  de- 
gree of  Federal  power  than  the  case  of  Theodore 
Roosevelt.  When  he  sought  election  in  1904,  as 
the  successor  of  the  martyred  McKinley,  the 
Democratic  party  indirectly  denounced  him  by 
favoring  uthe  nomination  and  election  of  a  Presi- 
dent imbued  with  the  principles  of  the  Constitu- 
tion, who  will  set  his  face  against  executive  usurpa- 
tion of  legislative  and  judicial  functions,  whether 
that  usurpation  be  veiled  under  the  guise  of  ex- 
ecutive construction  of  existing  laws  or  whether 
it  take  refuge  in  the  tyrant's  plea  of  necessity  or 
superior  wisdom."  The  denunciation  was  in  vain, 
even  though  every  one  knew  that  in  the  matter  of  ( 
Federal  control  he  had  gone  further  than  the 
most  daring  of  his  predecessors.  It  is  true  that 
he  had  expressed  his  willingness  to  have  the  Slates 
work  out,  if  they  could,  the  reforms  which  he  re-  ' 
garded  as  essential  to  the  national  welfare,  "but," 
he  added  significantly,  "if  the  States  do  not  do  as 
they  should,  there  will  be  no  choice  but  for  the 
National  government  to  interfere."  He  gave  the 
States  their  opportunity  when  he  invited  the  gov- 


176    FEDERAL  POWER:    ITS  GROWTH 

ernors  to  a  conference  at  the  White  House  and 
listened  while  they  gravely  discussed  the  necessity 
for  uniform  legislation  along  progressive  lines. 
But  when  the  conference  did  not  produce  material 
results,  as  nobody  expected  it  would,  and  when 
the  organization  then  effected  subsided  into  a  per- 
functory existence,  Mr.  Roosevelt  went  ahead 
and  upon  his  own  initiative  created  various 
Federal  Commissions  to  inquire  into  subjects 
which  might  properly  be  considered  as  belonging 
exclusively  to  the  jurisdiction  of  the  States.  In 
due  course  of  time  he  again  became  a  candidate 
for  the  Presidency;  and  although  it  was  evident 
that  he  entertained  positive  ideas  of  executive 
power,  as  shown  by  his  action  in  the  Tennessee 
Coal  and  Iron  Company  case;  and  although  the 
third-term  question  entered  into  his  candidacy, 
over  4,000,000  American  citizens  cast  their  votes 
for  him.  So  thoroughly  did  he  represent  the  idea 
that  the  Federal  power  should  be  exerted  to  the 
last  degree  in  the  effort  to  ameliorate  human  con- 
ditions that  the  voters  apparently  did  not  care 
whether  he  had  served  two  terms  or  twenty. 
There  is  no  other  reason  to  account  for  the  very 
large  degree  of  popular  support  accorded  him 
except  upon  the  theory  that  he  was  the  most  satis- 


AND  NECESSITY  177 

factory  personification  of  the  Federal  authority 
which  the  people  now  accepted  with  implicit  faith. 
The  relation  of  Federal  power  to  politics  is 
certain  to  be  complicated  in  the  future  by  the  fact 
that  the  Federalism  of  to-day  is  carrying  us  stead- 
ily toward  socialism — not  the  anarchistic,  revolu- 
tionary, radical  socialism  that  disregards  the  in- 
herent rights  of  property  and  demands  equality  at 
the  sacrifice  of  individuality,  but  the  State  social- 
ism which  employs  the  power  of  the  Government 
to  accomplish  those  desirable  and  universal  results 
which  are  not  otherwise  attainable.  The  merging 
of  Federalism  into  Socialism  is  already  apparent. 
Certain  it  is  that  the  growth  of  Federalism — the 
steadily  increasing  demand  for  Federal  inspection, 
regulation  and  control — has  been  coincident  to 
and  parallel  with  the  spread  of  the  Socialistic  sen- 
timent throughout  the  world.  It  is  State  social- 
ism, pure  and  simple,  for  the  Federal  govern- 
ment to  investigate  causes  of  infant  mortality;  to 
inspect  the  meats  which  the  people  eat  and  guar- 
antee the  purity  of  the  foods  and  drugs  which  they 
buy;  to  assist  the  planter  in  baling  his  cotton  or 
the  farmer  in  shipping  and  selling  his  grain;  and 
to  provide  employment  through  the  operation  of 
a  Federal  bureau.     Federal  legislation  to-day  is 


178    FEDERAL  POWER:    ITS  GROWTH 

fairly  saturated  with  the  germs  of  Socialism,  even 
though  the  term  is  not  used,  but,  sooner  or  later, 
the  nation  will  be  brought  face  to  face  with  a  de- 
mand for  laws  in  which  there  will  be  no  disguise. 
If  it  were  not  for  the  fact  that  the  Socialist  party, 
as  at  present  led  and  constituted,  is  repellent  be- 
cause of  its  lack  of  patriotism  and  is  guilty  of 
arraying  class  against  class,  it  would  have  a  much 
larger  following  than  it  enjoys.  Note,  however, 
that  while  the  Socialists,  as  a  political  organiza- 
tion, did  not  place  a  Presidential  candidate  in  the 
field  until  1904,  they  were  able  to  give  Eugene  V. 
Debs  nearly  1,000,000  votes  in  19 12.  There 
have  been  periods  during  the  past  five  years  when 
more  than  1,000  Socialists  held  elective  office  in 
the  United  States  and  the  number  is  constantly 
increasing.  In  more  than  one  city  to-day  the  So- 
cialists are  almost  equaling  in  numbers  the  voters 
of  the  long-established  parties  and  to  prevent  their 
further  success  at  the  polls  it  is  seriously  proposed 
— and  was,  in  fact,  actually  practiced  recently  in 
Chicago,  Milwaukee  and  other  cities — to  combine 
the  Republican  and  Democratic  electorate  upon  a 
non-partisan  ticket. 

Impetus  will  be  given  to  the  exercise  of  Fed- 
eral power  in  accomplishing  great  social  reforms 


AND  NECESSITY  179 

if  the  agencies  seeking  these  reforms  do  not  bear 
the  Socialist  label.  The  leaders  of  the  Progres- 
sive party  undoubtedly  had  this  idea  in  mind  when 
they  framed  in  19 12  a  political  platform  which 
closely  paralleled  the  utterances  of  the  Socialist 
organization.  It  included  the  prevention  of  in- 
dustrial accidents,  occupational  diseases,  over- 
work, involuntary  unemployment,  and  other  in- 
jurious effects  incident  to  modern  industry;  the 
fixing  of  minimum  safety  and  health  standards  for 
the  various  occupations  and  the  exercise  of  the 
public  authority  to  maintain  such  standards;  the 
prohibition  of  child  labor;  a  minimum  wage  in 
all  industrial  occupations;  the  general  prohibition 
of  all-night  work  for  women  and  the  establish- 
ment of  an  eight-hour  day  for  women  and  young 
persons;  the  protection  of  home  life  against  sick- 
ness, irregular  employment  and  old  age  by  a  sys- 
tem of  social  insurance;  the  establishment  of  a 
strong  Federal  commission  to  maintain  perma- 
nent active  supervision  over  industrial  corpora- 
tions ;  the  protection  of  the  public  against  fraudu- 
lent stock  issues ;  and  fully  a  score  of  other  activi- 
ties of  the  same  character.  The  political  platform 
of  the  Socialist  party  did  not  go  further  in  the 
matter  of  industrial  legislation,  and  advanced  be- 


180    FEDERAL  POWER:    ITS  GROWTH 

yond  the  Progressive  declaration  only  in  the  ad- 
vocacy of  collective  ownership  of  public  utilities 
and  of  all  privately-owned  commercial  enterprises. 
As  for  the  collective  ownership  idea,  it  is  a  fact 
that  there  are  many  men  in  public  life  to-day,  in  all 
of  the  political  parties,  who  believe  that  the  Fed- 
eral government  will  eventually  own  and  control 
all  of  the  railroads  in  the  United  States.  Unques- 
tionably this  matter  will  become  a  political  issue 
to  be  decided  at  the  polls. 

Very  altruistic  appear  some  of  the  national  re- 
forms desired  by  a  large  mass  of  the  people  but 
altruism  is  the  most  effective  basis  of  the  appeal 
for  unlimited  extension  of  the  Federal  power.  It 
inspires  almost  every  amendment  to  the  Constitu- 
tion now  pending  before  Congress  or  which  has 
been  introduced  during  the  last  ten  years.  It  is 
also  significant  that  no  amendment  has  proposed 
the  enlargement  of  State  powers.  On  the  con- 
trary each  aims  to  invest  the  Federal  government 
with  larger  jurisdiction.  It  is  the  Federal  power 
which  is  to  be  invoked  to  suppress  the  liquor  traf- 
fic or  regulate  marriage  and  divorce  or  establish 
uniform  hours  of  labor.  The  effort  to  secure  a 
constitutional  amendment  to  legalize  woman  suf- 


AND  NECESSITY  181 

frage  had  its  inspiration  in  the  fact  that  if  Con- 
gress would  only  adopt  the  amendment,  ratifica- 
tion by  three-fourths  of  the  States  would  impose 
the  system  upon  all  the  other  States — a  much  less 
difficult  method  of  securing  the  desired  result  than 
by  knocking  at  the  doors  of  the  legislatures  of 
the  forty-eight  States.  Nation-wide  prohibition 
through  the  adoption  of  an  amendment  to  the  Fed- 
eral Constitution  seems  also  assured,  especially 
since  Mr.  Bryan  has  openly  avowed  his  acquies- 
cence in  this  procedure  despite  his  adherence  to 
the  doctrine  of  State  rights  in  the  platforms  upon 
which  he  ran  in  his  various  presidential  campaigns. 
The  opponents  of  prohibition  are  relying  almost 
solely  upon  the  plea  that  the  regulation  of  the 
liquor  traffic  is  solely  within  the  rights  of  the 
States.    They  are  leaning  upon  a  broken  reed. 

The  time  has  passed  when  the  Democratic 
party,  unless  it  desires  to  invite  certain  defeat, 
will  return  to  the  ideas  which  it  enunciated  in  1840 
and  which  it  so  foolishly  and  fatally  reiterated  in 
subsequent  platforms.  The  political  battles  of  the 
future  will  not  be  fought  upon  the  question  of 
limiting  Federal  powers.  Rather  will  we  see  the 
political  parties  vying  with  each  other  in  sug- 


182    FEDERAL  POWER:    ITS  GROWTH 

gesting  how  that  power  can  be  most  largely  exer- 
cised for  the  benefit  of  the  people ;  and  that  party 
which  not  only  promises  but  performs  may  be  sure 
of  a  long  lease  of  power. 


AND  NECESSITY  183 


Chapter  XII 

FEDERAL  POWER  IN  WAR 

IN  time  of  peace  the  Federal  power  expanded 
steadily.  With  the  declaration  of  war  against 
Germany  on  April  6,  19 17,  it  grew  by  leaps  and 
bounds. 

When  a  great  national  crisis  is  precipitated  the 
common  cause  of  victory  necessitates  prompt  and 
decisive  action  and  demands  the  subordination  of 
corporate  and  individual  interest.  The  conflict 
upon  which  we  have  entered  concerns  the  nation 
as  a  whole  and  not  the  States  as  separate  entities. 
The  nation,  therefore,  must  be  supreme.  This  is 
a  truth  so  self-evident  that  the  people  not  only 
expect  Federal  power  to  be  exerted  to  the  utmost 
but  are  disappointed  if  such  is  not  the  case. 
Democracy  is  not,  and  cannot  be,  efficient  if  all 
its  agencies  are  not  coordinated  and  directed  by 
responsible  authority.  This  has  been  demon- 
strated by  experience ;  and  its  exposition  has  gone 
so  far  that  the  war  may  bring  about  a  change  in 


184    FEDERAL  POWER:    ITS  GROWTH 

our  institutions  as  definite  as  the  new  international 
boundaries  which  will  mark  the  conclusion  of 
peace.  In  other  words,  it  is  not  impossible  that 
the  trend  which  has  been  noted  as  constantly  de- 
veloping through  the  centuries  will  find  us  com- 
pelled to  accept  the  practically  universal  applica- 
tion of  Federal  power  instead  of  merely  recording 
isolated  instances  as  in  the  past. 

In  analyzing  the  reasons  for  the  situation  in 
which  the  nation  now  finds  itself,  we  discover 
three  factors  of  compelling  importance.  The 
first,  of  course,  is  the  necessity  of  focusing  au- 
thority upon  the  smallest  possible  point.  Divided 
responsibility  is  irresponsibility.  Realization  of 
this  fact  is  fully  recognized  and  Congress  has 
imposed  upon  the  President  a  degree  of  authority 
which  makes  him  literally  the  most  powerful  ruler 
in  the  world.  The  President  has  not  sought  to 
evade  this  responsibility.  On  the  other  hand,  it 
seems  to  completely  accord  with  his  own  view. 
War  was  not  declared  until  he  saw  fit  to  recom- 
mend it;  and  the  momentous  step  having  been 
taken,  he  has  proceeded  under  the  theory  that  his 
leadership  is  supreme.  When  Congress  has  hesi- 
tated to  adopt  his  policies  he  has  appeared  before 
it  in  person  to  add  the  force  of  his  presence  to  the 


AND  NECESSITY  185 

expression  of  his  desire;  while  at  other  times  he 
has  summoned  Congressional  leaders  to  the  White 
House  for  the  sole  purpose  of  emphasizing  his 
point  of  view.  These  occurrences  have  excited 
little  protest  or  criticism.  Every  one  has  felt  that 
in  a  period  of  crisis  the  reins  of  government 
must  not  be  loosely  held.  Only  by  the  largest 
exercise  of  Federal  power  could  results  be  ob- 
tained and  the  jurisdiction  of  the  President,  as 
the  embodiment  of  that  power,  has  proportion- 
ately enlarged. 

The  second  factor  is  the  abnormal  economic 
condition  resulting  from  the  war.  Production  in 
Europe  has  been  necessarily  curtailed  through  the 
mobilization  of  millions  of  men  in  the  various 
countries  and  those  nations  which  possessed  facili- 
ties for  safeguarding  the  transportation  of  food- 
stuffs and  munitions  of  war  across  the  seas  be- 
came eager  purchasers  of  American  supplies.  The 
very  exigency  of  the  situation  compelled  them  to 
procure  at  any  cost  those  things  which  were  essen- 
tial to  their  individual  and  national  existence  and 
a  rise  in  prices  was  the  natural  consequence.  This 
led,  in  turn,  to  a  popular  protest  which  could 
not  pass  unheeded.  At  the  same  time,  our  Allies 
could  not  be  deprived  of  the  assistance  which 


186    FEDERAL  POWER:    ITS  GROWTH 

they  so  sorely  needed.  Here  was  a  problem  be- 
yond State  solution.  It  could  only  be  successfully 
met  by  Congress  investing  the  President  with  au- 
thority to  appoint  Federal  agents  who  would  be 
clothed  with  the  utmost  degree  of  Federal  power 
to  discipline  the  profiteers,  turn  waste  into  saving, 
prevent  hoarding  for  speculative  purposes  and  to 
protect  the  people  from  any  and  all  kinds  of  im- 
position. Out  of  this  necessity  was  born  the  act, 
approved  August  10,  19 17,  which  provides  ufor 
the  national  security  and  defense  by  encouraging 
the  production,  conserving  the  supply,  and  con- 
trolling the  distribution  of  food  products  and 
fuel."  In  the  primitive  past  we  relied  upon  the 
law  of  supply  and  demand,  the  only  law  with 
which  our  forefathers  were  acquainted;  but  now 
we  attempt  by  the  exercise  of  Federal  power  "to 
assure  an  adequate  supply  and  equitable  distribu- 
tion, and  to  facilitate  the  movement  of  foods, 
feeds,  fuel,  including  fuel  oil  and  natural  gas,  and 
fertilizer  and  fertilizer  ingredients,  tools,  utensils, 
implements,  machinery,  and  equipment  required 
for  the  actual  production  of  food,  feeds  and  fuel." 
The  law  goes  even  further,  for  it  proposes  "to 
prevent,  locally  or  generally,  scarcity,  monopoliza- 
tion, hoarding,   injurious   speculation,  manipula- 


AND  NECESSITY  187 

tions,  and  private  controls,  affecting  such  supply, 
distribution  and  movement." 

The  word  "dictator"  would  seem  to  have  no 
place  in  a  republic  and  yet  the  word  is  already 
accepted  as  a  part  of  our  national  vocabulary. 
We  have  seen  the  agents  of  the  Federal  Food  Ad- 
ministration Bureau  entering  storage  warehouses 
owned  by  individuals  or  corporations  and  seizing 
hoarded  food,  converting  private  into  public 
property,  fixing  the  maximum  price  at  which 
manufacturers  and  dealers  in  foodstuffs  can  sell 
their  goods,  and  even  specifying  the  weight  of 
loaves  of  bread.  We  find  the  strong  arm  of  the 
Government  uplifted  against  any  person  who  re- 
stricts the  manufacture,  supply  or  distribution  of 
necessaries,  or  hoards  them,  or  exacts  excessive 
prices.  Under  the  law  all  persons  or  corpora- 
tions, other  than  those  whose  business  is  less  than 
$100,000  per  annum,  may  be  compelled  to  oper- 
ate under  a  Federal  license  issued  by  the  Presi- 
dent, and  heavy  penalties  are  provided  for  viola- 
tion of  the  provisions  of  the  act.  The  President 
is  even  authorized  to  purchase,  store,  "and  sell 
for  cash  at  reasonable  prices,"  wheat,  flour,  meal, 
beans  and  potatoes ;  and  thus  we  have  reached  a 
point  where  the  President  is  by  force  of  law  con- 


188    FEDERAL  POWER:    ITS  GROWTH 

verted  into  a  wholesale  produce  dealer — all  for 
the  good  of  the  people.  Furthermore,  "he  is  au- 
thorized to  requisition  and  take  over,  for  use  or 
operation  by  the  government,  any  factory,  pack- 
ing house,  oil  pipe  line,  mine  or  other  plant,  or 
any  part  thereof,  in  or  through  which  any  neces- 
saries are  or  may  be  manufactured,  produced,  pre- 
pared or  mined,  and  to  operate  the  same.".  In 
fact,  as  the  provisions  of  this  remarkable  law  are 
read  and  re-read,  it  is  difficult  to  imagine  any 
avenue  for  the  exercise  of  Federal  power  which 
has  been  overlooked. 

The  authority  of  the  Fuel  Administrator  is  on 
an  equal  plane  with  that  of  the  Food  Administra- 
tor. As  the  latter  has  fixed  the  price  at  which  the 
farmer  shall  sell  his  wheat,  so  the  former  has  fixed 
the  price  of  coal  at  the  mine  and  has  compelled  the 
maximum  production,  so  that  there  can  be  no 
false  inflation  of  prices.  The  law  gives  him  full 
authority  so  to  do;  and  further,  if  any  producer 
of  coal  and  coke  fails,  in  the  opinion  of  the  Presi- 
dent, to  conform  to  the  governmental  prices  or 
regulations,  "or  to  conduct  his  business  efficiently 
under  the  regulations  and  control  of  the  President 
aforesaid,  or  conducts  it  in  a  manner  prejudicial 
to  the  public  interest,"  the  President  is  empowered 


AND  NECESSITY  189 

to  requisition  and  operate  the  plant,  not,  however, 
without  allowing  just  compensation. 

Under  the  drastic  provisions  of  this  law  coal 
dealers  in  the  United  States  must  cooperate  with 
the  Federal  Fuel  Administration  or  go  out  of 
business.  This  policy  was  laid  down  in  an  ulti- 
matum sent  to  a  Pennsylvanian  firm  on  the  8th  of 
December,  19 17,  in  which  the  firm  was  advised 
that  if  refusal  to  cooperate  continued,  "the  Ad- 
ministration will  take  steps  to  have  all  coal  shipped 
to  you  diverted  to  local  dealers."  "It  is  not  a 
time  when  dealers  can  run  their  own  business  as 
they  see  fit,"  was  the  brusque  and  significant  mes- 
sage of  the  Fuel  Administrator,  and  the  firm  was 
given  four  hours  to  accept  the  dictation  of  the 
Federal  agent  or  close  its  doors.  Of  course,  it 
chose  the  former  alternative;  and  submission  by 
all  other  coal  dealers  will  naturally  follow.  It 
is  not  for  them  to  question  whether  a  college 
president,  suddenly  placed  in  the  position  of  Fed- 
eral Fuel  Administrator,  ought  to  be  regarded  as 
the  last  word  in  dictating  to  men  who  have  been 
in  the  coal  business  all  their  lives.  It  is  not  fof 
them  to  reason  why;  they  are  compelled  to  liter- 
ally do  or  die.  The  representatives  of  the  people 
gave  power  to  the  President;  the  President,  in 


190    FEDERAL  POWER:    ITS  GROWTH 

turn,  delegated  the  administration  of  that  power 
to  a  person  of  his  own  selection;  and  that  person, 
administering  the  law,  is  supreme.  The  question 
is,  of  course,  What  will  be  the  effect  of  such  abso- 
lute control  of  private  industry  upon  the  public 
mind?  It  is  true  that  the  operation  of  the  statute 
is  limited  to  the  period  of  the  war,  but  if  the  strug- 
gle should  last  two,  three  or  five  years,  we  will 
have  ample  time  to  observe  the  effect  of  the  legis- 
lation. Beneficent  results  can  have  only  one  out- 
come. The  law  will  be  extended  indefinitely.  We 
can  also  depend  with  reasonable  certainty  upon 
another  alternative.  Granting  that  experience 
demonstrates  that  some  of  the  provisions  are  im- 
practical or  operate  unjustly,  it  is  easy  to  believe, 
in  view  of  the  extent  to  which  the  nation  had  gone 
in  time  of  peace,  that  Congress  will  seek  to  remedy 
these  difficulties  by  amendment  rather  than  aban- 
don altogether  the  action  which  has  been  taken. 

The  third  factor  remains  to  be  considered.  Our 
entrance  into  the  war  found  us  without  men,  muni- 
tions or  ships.  To  secure  all  these — even  if  the 
work  occupied  a  year — was  an  enormous  task  and 
not  to  be  accomplished  without  utilizing  Federal 
power  to  the  utmost.  The  men  were  secured 
through  a  Federal  Conscription  Act,  under  which 


AND  NECESSITY  191 

the  State  militias  which  had  existed  for  a  hun- 
dred years  disappeared  in  a  National  Army.  As 
these  State  increments  were  not  sufficiently  numer- 
ous, additional  men  had  to  be  secured  and  this 
was  done  through  Federal  process.  Never  were 
State  boundaries  so  entirely  obliterated  as  in  the 
operation  of  the  Selective  Draft.  In  the  Civil 
War,  men  joined  the  Sixteenth  Illinois  Regiment 
or  the  Seventy-first  New  York  Regiment  and  the 
recognized  State  title  clung  to  the  organization 
throughout  the  four  years  of  service.  The  regi- 
ments of  the  National  Army  are  designated  by 
number  and  the  name  of  the  State  from  which 
the  men  may  come  is  never  mentioned.  In  the 
Civil  War,  State  flags  were  carried  into  battle  and 
are  still  preserved  with  tender  regard  in  museums 
devoted  to  relics  of  that  great  conflict.  To-day 
there  is  but  one  emblem — the  National  flag. 

Federal  power  was  invoked  to  compel  men  to 
serve  in  the  army  because  in  no  other  way  could 
the  requisite  military  force  have  been  obtained. 
The  same  power  was  necessary  to  secure  the  ships 
to  provide  transportation  and  to  supply  the 
loss  occasioned  by  submarine  warfare.  Under  an 
act  approved  September  7,  19 16,  the  United 
States  Shipping  Board  was  created.     This  board 


192    FEDERAL  POWER:    ITS  GROWTH 

has  formed  the  Emergency  Fleet  Corporation  and 
has  gone  into  ship-building  business  as  a  govern- 
ment proposition,  with  a  capital  of  $50,000,000 
provided  out  of  the  Federal  Treasury.  The  gov- 
ernment can,  if  it  so  elects,  absolutely  control  the 
ship-building  of  the  entire  nation  and  take  over, 
at  a  price  to  be  subsequently  fixed,  all  ships  com- 
pleted or  in  course  of  construction. 

The  army  cannot  be  transported  from  the  in- 
terior camps  to  the  seaports  nor  can  the  ships 
receive  their  cargoes  of  men,  food  and  munitions 
unless  the  railroads  move  the  trains  with  the  least 
possible  delay.  Failure  of  the  railroads  to  fully 
measure  up  to  this  enormous  task  compelled  Fed- 
eral intervention  and  unification  of  all  the  railroad 
systems  under  government  control  is  now  a  fact. 
In  the  past  we  proceeded  upon  the  theory  that 
competition  was  wise  and  beneficial  and  all  pool- 
ing arrangements  were  prohibited  by  law.  This 
theory  is  now  abandoned  and  Federal  power  is 
employed,  through  the  absorption  of  the  railroad 
systems  into  the  governmental  machine,  to  prevent 
traffic  congestion  and  delay.  The  unification  of 
the  railroads  is  the  greatest  undertaking  ever  in- 
trusted to  Federal  authority;  and  if  it  can  be  sat- 
isfactorily conducted,  the  people  will  accept  that 


AND  NECESSITY  193 

result  as  a  final  and  convincing  warrant  for  un- 
limited exercise  of  the  Federal  power. 

The  railroads  having  been  brought  under  Fed- 
eral control,  it  was  but  a  short  step  to  act  in  sim- 
ilar fashion  regarding  telegraph  and  telephone 
communication.  A  threatened  strike  by  organized 
labor  because  at  least  one  of  the  telegraph  com- 
panies declined  to  allow  their  employees  to  become 
unionized,  brought  the  matter  to  a  crisis,  although 
in  the  joint  resolution  for  which  the  President 
sought  hasty  action,  national  security  and  defense 
were  emphasized.  An  obedient  House  of  Rep- 
resentatives placed  all  telegraph,  telephone,  ma- 
rine cable  and  radio  systems  under  Federal  con- 
trol after  a  debate  of  two  hours,  and  while  the 
Senate  undertook  for  a  brief  period  to  exercise 
an  independent  spirit,  the  will  of  the  President 
finally  prevailed.  The  vote  was  not  unanimous, 
for  a  minority  of  sixteen,  contending  that  no  ade- 
quate reason  for  the  legislation  had  been  pre- 
sented and  the  constitutional  freedom  of  the  press 
from  governmental  supervision  was  in  danger, 
recorded  themselves  in  the  negative.  Even 
though  the  period  of  control  is  limited  by  the 
Wmt  resolution  to  the  duration  of  the  war,  the 


194    FEDERAL  POWER:    ITS  GROWTH 

experiment,  if  it  proves  successful,  may  be  in- 
definitely prolonged. 

Under  the  exigency  of  the  war  we  have  a  Fed- 
eral insurance  system  which  has  $50,000,000  at 
its  command  to  insure  ships  and  has  been  provided 
with  $176,000,000  with  which  to  insure  the  lives 
of  soldiers  and  sailors.  Thus  we  find  the  gov- 
ernment entering  another  field  of  private  industry, 
although  nobody  questions  the  wisdom  of  this 
paternal  regard.  In  fact,  the  people  are  accept- 
ing all  the  manifestations  of  governmental  au- 
thority with  an  acquiescence  that  amounts  to  indif- 
ference and  face  other  far-reaching  conditions 
without  surprise. 

And  what  of  the  Constitution  while  these  new 
laws  were  being  enacted?  It  has  not  been  seri- 
ously considered.  Men  in  Congress  have  not 
hesitated  to  openly  assert  in  debate  that  the  Con- 
stitution is  to  be  consulted  only  in  time  of  peace. 
The  doctrine  of  constitutionality  has  been  for- 
gotten and  the  doctrine  of  paramount  necessity 
obtains  with  more  force  than  ever  before.  When 
a  normal  period  returns,  we  may  recur  to  the  once- 
revered  document.  In  the  meantime,  we  see  lit- 
tle that  has  not  been  swept  into  the  all-embracing 
arm  of  the  government  by  war  legislation.     Sin- 


AND  NECESSITY  195 

gularly  enough,  only  one  feature  of  our  individual 
and  national  life  has  been  omitted.  We  have 
done  little  to  make  education  a  national  in- 
stitution. We  have  dealt  with  every  phase  of 
the  material  world  but  we  have  left  the  American 
mind  to  take  care  of  itself.  No  one  would  advo- 
cate the  adoption  of  the  Prussian  system  of  arbi- 
trarily feeding  citizens  upon  government-made 
doctrines.  We  ought,  however,  to  see  that  those 
who  are  to  grow  into  citizenhood,  as  well  as  those 
who  are  already  citizens,  are  inculcated  through 
knowledge  with  the  spirit  of  democracy,  the  love 
of  liberty,  a  respect  for  law  and  morals,  and  an 
understanding  of  international  justice  and  ideals. 
We  need  not  centralize  the  system  of  education 
and  we  can  guard  against  any  attempt  of  a  party 
to  perpetuate  itself  in  power  through  the  wide- 
spread teaching  of  its  especial  doctrines.  When 
the  war  has  taught  us,  as  it  will,  that  no  army 
can  have  a  higher  patriotism  than  the  people  back 
of  the  army,  and  the  man  in  the  trench  can  rise  no 
higher  in  the  realm  of  fortitude  and  sacrifice  than 
the  height  reached  by  the  nation  at  home,  we  shall 
realize  the  necessity  of  applying  Federal  authority 
to  the  immaterial  as  well  as  the  material.  We 
already  have  Federal  control  of  our  bodies,  our 


196    FEDERAL  POWER:    ITS  GROWTH 

going  and  our  coming,  our  food  and  our  homes. 
Assistance  in  the  development  of  our  minds  must 
come  as  the  direct  result  of  the  war,  because  one 
of  the  most  serious  disclosures  of  the  war  period 
has  been  ignorance  concerning  our  national  tradi- 
tions and  aspirations.  If  the  States  do  not  realize 
the  importance  of  emphasizing  this  phase  of 
knowledge,  the  national  government  will  be  com- 
pelled to  undertake  the  work.  Federal  education 
is  no  more  to  be  feared  than  Federal  regulation. 
It  is  certainly  as  essential  to  our  national  safety. 


AND  NECESSITY  197 


Chapter  XIII 

FEDERALISM  AND  THE  FUTURE 

THERE  is  but  one  conclusion  from  the  facts, 
which,  as  concisely  as  possible,  have  thus  far 
been  presented.  Whether  we  approve  or  not,  it 
must  be  accepted  as  inevitable  that  the  develop-  • 
ment  of  the  Federal  power,  persistent  from  the 
very  beginning  of  our  national  history,  will  not 
only  continue  unchecked  but  will  more  and  more  be 
made  manifest.  The  river  is  sweeping  onward  to 
the  sea.  It  might  have  been  possible  long  ago, 
when  the  nation  was  in  its  swaddling  clothes,  to 
have  changed  the  whole  character  of  its  future  ex- 
istence, if  the  people  had  so  determined.  It  is  now 
too  late,  for  the  nation  has  passed  out  of  its  for- 
mative period  into  the  full  stature  of  manhood. 
The  truth  is,  however,  that  the  American  people, 
as  a  whole,  have  never  believed  that  the  individu- 
ality of  the  States  must  be  recognized  as  an  essen- 
tial factor  in  our  national  growth.  This  is  demon- 
strated by  the  fact  that  in  every  contest  between 


198    FEDERAL  POWER:    ITS  GROWTH 

the  so-called  rights  of  the  States  and  the  exercise 
of  Federal  power,  the  latter  principle  has  pre- 
vailed. To-day  there  is  no  longer  any  conflict. 
The  tide  is  running  all  one  way.  It  is  impossible 
to  overcome  its  tremendous  force.  The  nation  is 
being  swept  forward  upon  a  tide  of  Federalism 
and  the  anxious  fears  occasionally  uttered  by  a 
steadily  decreasing  minority  are  deafened  by  the 
roar  of  the  torrent. 

The  people,  as  a  mass,  have  no  doubts.  They 
view  the  future  with  the  sublime  optimism  which 
is  characteristic  of  the  American  temperament. 
They  increase,  rather  than  decrease,  the  duties  and 
responsibilities  of  the  Federal  government  because 
their  faith  in  that  government  is  supreme  and  be- 
cause they  realize  that  no  national  evil  can  be  rem- 
edied and  no  national  results  achieved  except  by 
the  force  of  centralized  authority.  There  is  no 
gainsaying  the  lesson  which  the  nation  has  learned. 
Even  before  the  present  war  the  lottery  evil  was 
abolished,  the  devastating  yellow  fever  conquered, 
the  purity  of  our  food  guaranteed,  powerful  cor- 
porations regulated  and  the  great  railroads  of  the 
country  compelled  to  treat  every  shipper,  large  and 
small,  with  absolute  equality.  All  the  laws  which 
invest  the  Federal  government  with  larger  powers 


AND  NECESSITY  199 

have  accomplished  the  anticipated  and  desired  re- 
sults, and  it  may  be  set  down  as  an  axiom  that  the 
representatives  of  the  people  will  not  in  the  future 
hesitate  at  the  acceptance  of  any  proposition  which, 
having  in  view  the  public  welfare,  is  offered  for 
their  consideration.  They  have  learned  the  short 
and  direct  way  toward  progress ;  and  the  momen- 
tum of  years  of  accumulated  experience  is  not  to 
be  overcome. 

The  status  quo  existing  before  the  war  began 
will  never  be  entirely  restored.  This  is  all  the  -. 
more  true  because  the  advanced  position  which  we 
have  taken  under  the  pressure  of  a  crisis  is  not 
radical  but  evolutionary.  We  are,  therefore,  con- 
fronted with  the  fact  that  when  the  era  of  peace 
finally  arrives  we  must  face  the  necessity  of  a  new 
adjustment  of  Federal  and  State  governments — 
an  adjustment  made  all  the  more  difficult  because 
of  the  new  relations  occasioned  by  the  war.  The 
situation  is  further  complicated  by  the  failure  of  i 
the  Constitution  to  provide  a  solution  of  the  prob- 
lem. The  high  regard  which  we  feel  for  our  great 
charter  cannot  blind  our  eyes  to  the  knowledge 
that  it  fails  to  distinctly  affirm  the  duties  and  re-' 
sponsibilities  of  the  States.  The  last  three  sec- 
tions of  Article  I  detail  plainly  the  things  which  a 


200    FEDERAL  POWER:    ITS  GROWTH 

State  is  forbidden  to  do;  but  the  things  which  a 
State  can  do  are  hidden  in  provisions  altogether 
too  general  in  their  character.  We  find  the  pow- 
ers of  Congress,  on  the  other  hand,  specifically  set 
forth;  and  it  is  but  natural  to  regret  that  the 
framers  of  the  Constitution  did  not  have  the  pres- 
cience to  anticipate  the  wisdom  which  marks  the 
Act  of  the  British  Parliament  of  1867  which  cre- 
ated the  present  union  of  Canada  and  wherein  the 
lines  of  demarcation  between  the  Dominion,  on 
the  one  hand,  and  the  provinces,  on  the  other,  are 
plainly  drawn.  One  of  the  sections  of  that  act  is 
devoted  to  the  distribution  of  legislative  powers, 
twenty-nine  subjects  being  assigned  to  the  Parlia- 
ment, which  is  the  Federal  body,  and  sixteen  other 
subjects  being  classified  under  the  heading,  "Ex- 
clusive powers  of  the  provincial  legislatures." 
The  consequence  is  that  in  Canada  there  is  com- 
paratively little  dispute  as  to  Dominion  or  provin- 
cial jurisdiction  because  the  channel  of  its  govern- 
ment, unlike  ours,  has  been  plainly  charted. 

Beneficent  as  the  exercise  of  Federal  power  has 
been,  and  with  the  certainty  that  it  will  be  in- 
creased rather  than  diminished,  we  must,  neverthe- 
less, admit  that  unless  we  deal  with  it  along  new 
lines  it  is  fraught  with  evil.     Present  conditions 


AND  NECESSITY  201 

point  toward  an  oligarchy,  wherein  a  few  men  will 
have  supreme  power,  and  the  transition  from  an 
oligarchy  to  an  autocracy  is  all  too  brief.  The 
problem  is  to  preserve  our  democracy  even  under 
a  centralized,  Federalistic  government.  The  first 
step  toward  this^  result  is  to  curtail  executive 
power.  The  President  should  be  deprived  of  the 
right  to  veto  legislation,  or  if  that  right  be  still 
continued,  the  enactment  of  a  law  despite  his  veto 
should  be  made  possible  by  a  majority  vote  of  the 
two  Houses  of  Congress.  It  is  true  that  this  would 
necessitate  an  amendment  to  the  Constitution,  but 
this  is  not  an  insurmountable  obstacle.  On  the 
contrary,  the  time  has  come  when  constitutional 
changes  should  be  boldly  and  persistently  advo- 
cated. We  are  too  apt  to  regard  the  Constitution 
as  a  document  beyond  criticism  or  revision.  It  is 
revered  like  the  ark  of  the  Covenant,  not  to  be 
profaned  by  impious  touch.  President  Lowell,  of 
Harvard  University,  explains  the  origin  of  this 
reverence.  "The  generation  that  framed  the  Con- 
stitution," he  says,  "looked  upon  that  document  as 
very  imperfect,  but  they  clung  to  it  tenaciously  as 
the  only  defense  against  national  dismemberment, 
and  in  order  to  make  it  popular,  they  praised  it 
beyond  their  own  belief  in  its  merits.    This  effort 


202    FEDERAL  POWER:    ITS  GROWTH 

to  force  themselves  to  admire  the  Constitution  was 
marvelously  successful,  and  resulted,  in  the  next 
generation,  in  a  worship  of  the  Constitution  of 
which  its  framers  never  dreamed." 

It  must  be  remembered,  also,  that  the  men  who 
dominated  the  making  of  the  Constitution  were  by 
no  means  convinced  that  the  common  people  could 
be  trusted.  Suffrage,  in  the  early  days  of  the  re- 
public, even  when  exercised  in  the  election  of  rep- 
resentatives of  the  people,  was  not  universal,  being 
restricted  by  property  and  other  qualifications. 
Any  action  taken  by  the  popular  branch  of  Con- 
gress was  subject  to  review  by  a  Senate  whose 
members  were  deliberately  and  carefully  chosen 
by  State  legislatures ;  the  Senate  being  the  saucer, 
according  to  a  remark  attributed  to  George  Wash- 
ington, into  which  the  hot  tea  of  the  House  could 
be  poured  to  cool.  Should  both  the  Senate  and  the 
House  be  too  responsive  to  popular  demand,  there 
was  still  a  refuge  for  property  and  other  conserva- 
tive interests  in  the  veto  power  of  the  President 
and  in  the  knowledge  that  it  would  require  a  two- 
thirds  vote  in  both  Houses  to  overcome  his  objec- 
tion. The  men  who  to-day  still  entertain  a  lurking 
fear  of  the  people  will  undoubtedly  uphold  this 
veto  power  as  one  of  the  most  important  and  nee- 


AND  NECESSITY 

essary  safeguards  of  the  Constitution,  just  as  they 
opposed  the  popular  election  of  Senators.  None 
the  less,  the  United  States  stands  alone  to-day 
among  the  great  constitutional  governments  in  con- 
ferring upon  its  ruler  the  right  to  thwart  the  ex- 
pressed will  of  the  national  legislature.  In  France 
the  President  has  no  veto  power.  In  Great  Britain, 
the  action  of  Parliament  is  final ;  and  in  Italy,  the 
sanction  of  the  King  uis  necessary  to  the  validity 
of  laws  proposed  by  the  Parliament,  but  in  point 
of  fact  he  never  refuses  it."  We  have  already 
shown  the  menace  to  our  free  institutions  through 
the  dispensation  of  patronage  by  the  President. 
The  privilege  of  wholesale  appointment  and  the 
right  to  veto  legislation  must  be  taken  away  from 
him  before  we  can  view  with  entire  equanimity  our 
further  certain  progress  along  the  path  of  Fed- 
eral power. 

Something  is  radically  wrong  with  our  system 
of  government  when  the  representatives  of  the 
people,  charged  by  their  oaths  to  perform  the  leg- 
islative duties  for  which  they  were  duly  elected, 
are  deterred  from  the  consideration  of  measures 
by  the  knowledge  that  even  should  such  measures 
be  enacted,  they  would  be  vetoed  by  a  hostile 
President.    When  Congress  is  evenly  divided  oa 


204    FEDERAL  POWER:    ITS  GROWTH 

party  lines,  and  when  support  of  a  President  is 
made  a  solemn  party  obligation,  the  national  legis- 
lature is  powerless  to  act.  Occasionally,  when  ad- 
ministration or  political  policies  are  not  involved, 
a  veto  is  without  effect;  but  the  fact  remains  that 
there  is  absolutely  no  reason  why  the  judgment 
of  a  single  man,  even  though  he  be  the  occupant 
of  the  White  House,  should  neutralize  the  will  of 
the  majority  of  the  representatives  of  the  people 
in  Congress. 

Other  steps,  even  more  progressive,  must  be 
taken.  The  trouble  is  that  while  we  have  in  prac- 
tice, if  not  in  theory,  changed  our  whole  system  of 
government,  we  have  not  formally  recognized  the 
fact  that  the  change  has  taken  place.  We  have 
drifted  along,  in  characteristic  American  fashion, 
without  having  the  courage  to  confess  that  the  old 
idea  of  State  sovereignty  has  been  wiped  out  of 
existence  by  the  necessities  of  modern  times.  With 
marked  persistency  we  are  building  up  a  central- 
ized Federal  government,  reducing  the  States  to 
mere  nonentities,  but  we  are  making  no  provision 
for  working  out  our  salvation  under  the  new 
regime.  We  must  be  blind  not  to  see  that  the  era 
of  Federal  power  is  permanently  established  and 
yet  no  one  has  had  the  courage  to  provide  for  the 


AND  NECESSITY  205 

inevitable  future  by  devising  a  system  of  govern- 
ment designed  to  meet  new  conditions.  We  are 
allowing  the  foundations  of  our  national  edifice 
to  crumble  away  without  planning  a  safe  and  dura- 
ble substitute.  If  the  States  in  our  union  are  to 
drop  to  the  plane  of  counties  in  England,  or  de- 
partments in  France,  or  provinces  in  Canada — and 
already  they  are  in  this  category — and  we  are  still 
to  preserve  the  democratization  which  has  been 
our  strength  and  our  glory  in  the  past,  we  must 
see  to  it  that  neither  an  oligarchy  nor  an  autocracy 
takes  the  place  of  a  republic.  There  is  only  one/ 
way  in  which  we  can  avoid  the  peril  that  threatens. 
The  government  must  not  be  centered  in  a  presi- 
dent, to  which  point  we  have  arrived,  but  must  be 
directly  administered  by  the  people.  In  other 
words,  the  solution  of  our  national  problem  lies 
in  the  adoption  of  a  system  of  parliamentary  con-  \ 
trol,  similar  to  that  which  gives  to  Great  Britain, 
France  and  Canada  a  centralized  or  national  gov- 
ernment without  the  evils  which  even  now  are  part 
of  our  experience. 

We  have  a  traditional  love  for  the  States. 
They  existed  as  independent  political  organiza- 
tions before  the  republic  was  formed.  They  are 
now  a  part  of  our  great  union;  and,  with  a  love 


206    FEDERAL  POWER:    ITS  GROWTH 

that  is  more  sentimental  than  wise,  we  hesitate  to 
relegate  them  to  the  position  of  mere  provinces. 
Nevertheless,  we  must  realize  that  the  States,  even 
if  they  are  not  all  laggards  in  the  march  of  prog- 
ress, are  prevented  from  unanimity  of  action  by 
reason  of  their  diversity  of  location  and  multiplic- 
ity of  numbers;   and  disjointed  action  is  worse 
than  futile.    The  greater  must  swallow  up  the  less ; 
and  the  Federal  aegis  is  over  all.     In  readjusting 
ourselves  to  this  new  condition  we  need  not  do 
violence  to  the  eternal  principles  which  inspired 
our  Constitution.    We  can — and,  indeed,  we  must 
— eliminate  certain  details  which  are  neither  sa- 
cred nor  lasting,   and  introduce  those  essentials 
which  will  insure  the  national  development  and 
permanency  which  other  democracies  enjoy.     We 
could   advantageously  borrow  from   France  the 
provision  which  gives  the   President  a   term  of 
seven  years,  with  ineligibility  for  reelection.     The 
parliamentary  government  of  Great  Britain  is  re- 
sponsive and  responsible;  but,  especially,  we  find 
in   Canada   a  model  of  federal  union  which  is 
worthy  of  serious  consideration. 

Students  of  the  Canadian  system  insist  that  it 
contains  elements  of  undoubted  strength  not  en- 
joyed by  the  people  of  the  United  States.    This  is 


AND  NECESSITY  207 

unquestionably  true.     The  head  of  the  Dominion 
Government  is  the  Governor-General,  appointed 
by  the  crown,  but  his  principal  duty  consists  in  safe- 
guarding the  integrity  of  the  empire.    He  governs 
entirely  through  a  ministry  which  comes  from  and 
is  responsible  to  the  people.     A  weak  cabinet  in 
Canada  could  not  long  continue  in  power.     The 
instinct  of  political  self-preservation  compels  the 
selection  of  strong,  capable  men,  skilled  in  the 
knowledge  of  the  great  departments  which  they 
are  called  upon  to  administer.     Otherwise  they 
cannot  survive.    In  the  United  States,  a  presiden- 
tial cabinet  can  be  chosen  for  personal  reasons 
from  among  the  butchers  and  bakers  and  candle- 
stick-makers, and  if  an  obedient  Senate  confirms 
the  nominations,   the  people  have   no   recourse. 
The  members  of  a  presidential  cabinet  are  not  re- 
sponsible to  the  people,  they  cannot  be  interro- 
gated upon  the  floor  of  Congress,  and  can  remain 
in  office  as  long  as  they  are  persona  grata  to  the 
President;  and  the  weakness  and  inefficiency  of 
some  presidential  cabinets  has  been  little  short  of 
a  national  scandal.     In  Canada,  as  in  England,  a 
ministry  stands  or  falls  upon  the  adoption  or  de- 
feat of  measures  which  it  proposes ;  and  should  de- 
feat come,  there  is  provision  for  a  prompt  appeal 


208    FEDERAL  POWER:    ITS  GROWTH 

to  the  people  upon  the  question  at  issue.  We  lack 
this  elasticity  in  the  United  States.  Here  we  elect 
a  Senator  for  six  years,  a  Representative  for  two 
years  and  a  President  for  four  years,  during  which 
terms  nothing  done  by  either,  short  of  an  impeach- 
able offense,  can  affect  his  official  status;  and  the 
fact  that  a  President  is  to  remain  in  office  long 
enough  to  influence  by  praise  or  criticism  the  politi- 
cal fortunes  of  candidates  in  his  own  party  seek- 
ing reelection  compels  subordination  to  his  will. 
This  fact  menaces  free  government.  The  remedy 
lies  in  recasting  our  system  so  that  the  President 
shall  be  surrounded  by  men  whose  period  of  power 
must  end  when,  in  the  judgment  of  the  representa- 
tives of  the  people,  their  unfitness  is  demonstrated 
by  their  acts. 

The  American  people  are,  as  a  whole,  so  loth  to 
interfere  with  established  custom  that  even  the 
mere  suggestion  of  a  departure  from  the  beaten 
path  is  certain  to  antagonize  those  timid  souls  who 
are  not  yet  willing  to  recognize  that  times  have 
changed  and  that  we  must  change  with  them. 
Nevertheless,  with  the  fact  staring  us  in  the  face 
that  unchecked  progress  along  the  path  of  Fed- 
eral power  is  as  certain  for  the  future  as  it  has 
been  in  the  past,  we  must  provide  some  method 


AND  NECESSITY  209 

which  will  insure  the  perpetuity  of  the  republic 
under  new  conditions.  We  can  obliterate  State 
lines  and  still  remain  a  democracy;  but  our  prin- 
ciples and  ideals,  which  are  of  more  concern  than 
State  governments,  are  doomed  if  the  strong  cen- 
tralized authority  which  we  have  created  is  al- 
lowed to  operate  without  recognized  principles./ 
and  without  restraint.  Already,  in  our  typically 
American  desire  to  achieve  immediate  and  de- 
cisive results,  we  have  endowed  individuals  with 
unlimited  power — a  fact  which  gives  aid  and  com- 
fort to  those  who  assert  that  only  in  this  T^ay  can 
democracy  escape  failure.  The  great  body  of  our 
citizenship  are  not,  however,  of  little  faith.  They 
are  sincerely  imbued  with  the  hope  and  belief  that 
we  can  be  a  nation  without  becoming  an  autocracy; 
that  Federal  power  can  continue  to  be  exercised 
without  danger;  and  that  our  democracy  can  be 
preserved  without  minimizing  efficiency  or  de- 
stroying the  great  structure  of  liberty  which  has 
been  erected. 

In  presenting  a  plan  whereby  this  aspiration 
can  be  realized,  we  do  not  have  to  resort  to  radi- 
cal procedure.  It  is  not  necessary  to  hastily  adopt 
the  English  form.  We  can  approach  an  ideal  sys- 
tem through  gradual  stages,  without  disrupting 


210    FEDERAL  POWER:    ITS  GROWTH 

our  Constitution,  but,  on  the  other  hand,  more 
strongly  emphasizing  the  principles  of  popular 
government.  We  need  not,  for  instance,  entirely 
deprive  the  President  of  the  appointing  power. 
Judges  and  higher  officials  may  still  be  selected  by 
him,  subject  to  confirmation  by  the  Senate;  but  the 
great  bulk  of  the  office-holders,  who  deal,  as  it 
were,  with  the  purely  business  side  of  governmen- 
tal affairs,  should  be  chosen  through  non-political, 
competitive  methods  and  retained  as  long  as  they 
faithfully  and  effiicently  perform  their  duties.  It 
is  true  that  this  would  play  havoc  with  the  poli- 
ticians who  believe  that  to  the  victors  belong  the 
spoils,  but  the  large  majority  of  the  people  who 
are  more  concerned  with  good  administration  than 
with  the  distribution  of  patronage,  would  view 
this  new  era  with  profound  satisfaction. 

The  members  of  the  cabinet  who  are,  and  al- 
ways have  been,  personal  appendages  of  the  Presi- 
dent, should  still  be  appointed  by  him,  but  they 
should  be  directly  responsible  for  their  acts  and 
policies  to  the  representatives  of  the  people  in  the 
Senate  and  House.  They  should  have  seats  upon 
the  floors  of  both  Houses  for  the  purpose  of  an- 
swering inquiries;  and  with  each  one  conscious  of 
his  strict  accountability  to  Congress,  the  govern- 


AND  NECESSITY  211 

ment  would  be  brought  closer  to  the  people.  In 
the  adoption  of  this  plan  it  would  be  necessary  to 
merge  into  the  several  departments  the  numerous 
bureaus,  commissions  and  boards  which  now  en- 
joy an  irresponsible  and  unrestrained  existence; 
but  such  coordination  would  tend  to  efficiency  and 
direct  responsibility.  Much  of  the  evil  of  an  in- 
dependent and  constantly  increasing  bureaucratic 
system  would  be  removed. 

If  it  be  asserted  that  by  making  cabinet  officers 
responsible  to  the  representatives  of  the  people  in- 
stead of  to  the  President,  the  latter  will  be  in  some 
degree  shorn  of  power,  the  answer  must  be  frankly 
made  that  such  deprivation  is  by  no  means  unde- 
sirable. There  is  no  necessity,  even  if  it  were  pos- 
sible, to  reduce  the  presidency  of  the  United  States 
to  the  perfunctory  position  which,  for  example, 
obtains  with  the  head  of  the  French  republic ;  nor 
is  it  feasible  at  this  time  to  establish  a  premier- 
ship such  as  forms  the  pivot  of  the  English  gov- 
ernment. We  can,  however,  avoid  the  abuse  and 
misuse  of  Federal  power  by  government  officials, 
which  is  not  a  distant  menace,  if  the  men  ap- 
pointed by  the  President  to  administer  the  great 
departments  of  the  government  are  made  directly 
and  instantly  responsible  to  the  representatives  of 


212    FEDERAL  POWER:    ITS  GROWTH 

the  people.  In  its  actual  operation  the  plan  would 
differ  from  the  English  system  in  that  Congress 
could  deal  with  the  cabinet  individually  as  well  as 
collectively;  the  former,  if  the  member  be  mani- 
festly inadequate,  incompetent,  or  otherwise  unfit- 
ted for  his  high  position;  and  the  latter,  if  a  re- 
pudiated measure  be  presented  as  the  policy  of  the 
entire  administration.  Certain  it  is  that  if  in  the 
past  some  plan  such  as  is  here  suggested  had  been 
in  force,  the  history  of  sundry  legislative  and  of- 
ficial actions  would  have  been  less  open  to  criti- 
cism than  has  been  the  case. 

Universal  acceptance  cannot  be  anticipated  for 
any  method  or  methods  which  are  offered  as  a 
solution  of  the  problems  which  accompany  the 
almost  unrestricted  exercise  of  Federal  Power. 
The  subject  is  too  vast  and  complicated  to  be 
clarified  by  a  single  idea.  Much  will  be  accom- 
plished, however,  if  thoughtful  attention  of  the 
American  people  can  be  directed  to  present 
conditions  and  to  the  necessity  of  studying 
their  effect  upon  our  national  future.  We  know 
that  it  would  be  fatal  to  attempt  to  operate  a  mod- 
ern, broad-gauge  railroad  train  upon  the  ancient 
rails  over  which  Stephenson  carefully  maneuvered 
his  first  steam  engine.    The  analogy  applies  to  the 


AND  NECESSITY  213 

United  States.  We  must  meet  new  conditions, 
wherein  the  States,  as  integral  parts  of  a  dual 
plan,  have  almost  completely  vanished,  and  their 
places  taken  by  a  powerful,  compact  machine 
known  as  the  National  Government.  The  State 
will,  in  the  future,  bear  the  same  relation  to  the 
union  that  the  county  does  to  the  State.  It  will  be 
a  convenient  geographical  division  with  limited 
and  circumscribed  powers.  Even  its  last  vestige 
of  erstwhile  glory — the  right  to  cast  its  electoral 
vote  for  President  and  Vice-President — will  soon 
be  taken.  The  people  and  not  the  States  must 
decide  who  shall  be  the  chief  executive  of  the  na- 
tion. This  will  require  another  amendment  to  the 
Constitution,  but  this  change,  like  others,  is  only 
a  matter  of  time. 

Federal  power,  briefly  stated,  is  the  power  of 
the  people.  It  is  granted  in  the  last  four  words 
of  the  tenth  article  of  the  Constitution — four  preg- 
nant and  significant  words  which  have  been  over- 
looked, if  not  entirely  ignored.  "The  powers  not 
delegated  to  the  United  States  by  this  Constitu- 
tion," says  the  article,  "nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively  or 
to  the  people."  Experience  has  demonstrated  that 
the  States  cannot  think  or  act  nationally.     Forty- 


214    FEDERAL  POWER:    ITS  GROWTH 

eight  legislatures  cannot  act  in  unison;  and  the 
evils  of  our  modern  civilization  or  the  crises  which 
come  with  succeeding  generations  cannot  be  suc- 
cessfully combated  or  overcome  with  the  weak- 
ness and  lack  of  cohesion  which  are  inseparable 
from  separate  political  organizations.  With  the 
passing  of  the  States,  the  people  are  coming  into 
their  own,  but  in  order  to  meet  their  new  and 
tremendous  responsibilities  they  must  be  provided 
with  a  system  of  government  different  in  its  details 
from  that  under  which  we  have  been  existing,  half- 
State  and  half-Nation.  The  people  have  acted 
under  the  plain  grant  of  the  Constitution  in  invest- 
ing the  Federal  government  with  unexampled 
power  and  they  have  thus  acted  because  it  was 
evident  that  in  no  other  way  could  the  develop- 
ment oJ^e  nation  be  assured;  but  due  regard  for 
the  sa^PP  and  permanence  of  their  government 
demands  that  they  shall  directly  exercise  this 
power.  They  should  abolish  the  absurdity  of  un- 
dergoing a  three  months'  spasm  in  a  presidential 
campaign  and  then  subsiding  into  a  state  of  utter 
helplessness  for  the  succeeding  four  years.  They 
should  revise  the  Constitution  so  as  to  extend  the 
presidential  term  to  six  years,  with  ineligibility  for 
reelection;  should  reduce  to  a  minimum  the  presi- 


AND  NECESSITY  215 

dential  dispensation  of  patronage;  and  provide  for 
a  cabinet  which  would  be  personally  and  imme- 
diately responsible  to  them  for  every  official  act 
and  recommendation.  Congress,  representing  the 
people,  would  then  be  free  to  act  without  fear 
or  favor;  and  the  pivot  upon  which  the  nation 
turns  would  no  longer  be  the  White  House  but 
the  Capitol.  The  framers  of  the  Constitution 
gave  first  and  most  extended  consideration  to  the 
legislative  branch  of  our  government;  and  if  this 
place  of  honor  has  not  been  held,  it  is  because  the 
evolution  of  Federal  power  has  abnormally  de- 
veloped the  position  of  the  executive.  The  fact 
that  the  President  has  loomed  larger  and  larger 
in  our  political  history  has  dwarfed  Congress  and 
is  the  basis  for  the  prevalent  criticism  that,  as  a 
body,  it  has  retrograded  in  initiative,  inM«ident 
judgment  and  personnel.  ^^ 

There  is  no  fear  of  Federal  power  in  Great 
Britain,  France  or  Canada,  even  though  they  have 
centralized  governments.  There  need  be  no 
menace  of  Federal  power  in  this  country  if,  as  in 
other  great  democracies,  the  people  keep  the  con- 
trol of  that  power  in  their  own  hands  through  a 
cabinet  responsible  to  their  representatives  in  Con- 
gress and  through  the  restriction  of  executive  au- 


216    FEDERAL  POWER:    ITS  GROWTH 

thority.  We  can  no  longer  stand  upon  the  shifting 
sands  of  opportunism,  trusting  in  haphazard 
fashion  that  the  obsolete  forms  of  the  past  will  in 
some  inscrutable  way  be  adjusted  to  the  inevitable 
exigencies  of  the  future.  We  must  face  our  duty 
with  faith  and  wisdom,  and,  above  all,  with  cour- 
age. We  must  honestly  recognize  the  fact  that  the 
States  have  been  eliminated  as  national  factors 
and  that  we  have  established  a  Federal  govern- 
ment with  supreme  functions;  but  there  is  still 
before  us  the  task  of  making  that  government  so 
elastic,  so  completely  under  the  control  of  the 
people  and  so  free  from  the  perils  of  autocracy 
that  Federal  power,  instead  of  being  a  menace 
to  our  liberties,  will  be  the  cornerstone  upon  which 
our  nation  will  permanently  endure. 


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